
Qass_ 

Book,_ 



ANSWER 



VO 



MR. JEFFERSON, 



AN 



ANSWER 



TO 



MR. JEFFERSON'S 

JUSTIFICATION OF HIS CONDUCT 



IN THE CASE OS 



NEW ORLEANS BATTURE. 



BY EDWARD LIVINGSTON. 



Nulla; sunt occultiores insidia, quam qua; latent in simulatione officii, 
aut in aliquo necessitudinis noming» 

ClC. 1IB. INC. FBAGH, 



PHILADELPHIA: 

PRINTED BY WILLIAM FRY. 

1813. 






NsL7 



SUMMARY OF CONTENTS. 



I Page 

NTRODUCTORY observations. Mr. Jefferson's book; its method 
and component parts. His desire to obtain an investigation of this 
case on its merits - ..... 1 

Brief statement of material facts. Sketch of the batture and its situation, 
of the title by which that property is held and of the events which 
gave rise to this controversy ..... 6 

Mr. Jefferson's skirmishing attacks repelled. Denies my title to the 
batture. 1. Because one of the Graviers had parted with it to others 
before it was conveyed to me. Mr. J.'s argument on this head founded 
on a mistranslation of a Spanish record. 2. Because it belongs to all 
the heirs of that same Gravier, and my title is only through one of 
them, who conveyed in fraud of his brothers and sisters. Answer: 
Objection not founded in fact; and the brothers and sisters have con- 
firmed my title. Admitting that either of these contradictory allega- 
tioss werefcrue, the president was not on that account authorised to 
seize the batture ...... }q 

Allegation that I stirred up a dormant claim to the batture, and obtain- 
ed the Jand by champerty. Denied, and the contrary proved. John 
Gravier's possession. Mr. de la Bigarre, his widow and children. Mr. 
Parisien's character established against the insinuations of Mr. J. 15 

Mr. J. after endeavouring to excite prejudices against me, approaches 
with cautious steps towards his own justification. He objects that the 
judgment in my favor against the Corporation of New Orleans, did 
not bind the United States, who were not parties to the suit. Answer: 
They are bound, because they claim as Trustees for the Corporation, 
and not for their own use. Query, why Mr. J. did not himself insti- 
tute a suit to which the United States should have been parties? Mo- 
tives hinted at. His dislike to playing at pushpin with judges and 
lawyers ........ vx 

Alleged grounds on which Mr. J. proceeded to seize the batture. 
Gov. Claiborne's letters. I was disliked at New Orleans. Judgment 
of the Court unpopular. My works threatening to drown the city. The 
people in commotion. No time to wait for the slow forms of law. — 
Answer: My works did not threaten to drown the city. Mathematical 
proof of the fact. Mr. J. not high Constable of New Orleans. Local 
laws sufficient to prevent and local authorities to abate nuisances. The 
pretended nuisance not removed. Myself only turned out of possession 

h 



VI 



Page 



Proceedings of Mr. J. on receiving those letters. Cabinet Council 
called. View of the whole case taken on the proofs before them. Ob- 
scure phrase of Mr. J. to avoid confessing that they had no proofs. 
His, such as they are, collected since .... 28 

Preliminary question said to have been decided by the Cabinet Council, 
that the case was to be governed by die French, not by the Spanish 
law. Both systems equally favourable to my argument. Propriety, how- 
ever, of this decision doubted. Examination of the question how far 
the laws of a ceded country are changed by the mere effect of the 
transfer? Granted that the civil laws, but denied that the political 
laws are notchanged. This question discussed - 29 

French laws not applicable to this case, because the Batture did not 
exist at the tirm when they ceased to operate in Louisiana. The 
attorney general, himself, had doubts as to what system of laws should 
be applied. Alleged unanimity of the Cabinet Council on this noint 
denied. Reason why the French law was selected in preference to 
the Spanish. It afforded quibbles which have been refuted over and 
over, and the refutations not answered. Reference to former publi- 
cation ........31 

Mr. J at last enters upon the real merits of his defence. His argument 
divided into four points. 1. That the Batture is an- alluvion, and, as 
such, belongs to the United States in right of the kings of France. 2. 
That the right of alluvion accrues only to rural, not to urban posses- 
sions. 3. That the Batture is not an alluvion, but a part of the bed of 
the Mississippi. 4. That my works were dangerous to the city of New 
Orleans; that they were a nuisance, which he had a right to abate - 35 
I. Mr. J.'s first proposition denied and discussed. The law of France 
adopts the rule of the civil law which gives the alluvions of navigable 
rivers to the owners of the adjacent estates. Of five French authors 
quoted by Mr J. in support of the opposite doctrine, one alone, Po- 
thier, appears to support it, and not very clearly. His quotations from 
the four others are mutilated, and when restored, prove what I allege. 
Guyot, Ferriere, Denisart. The Encyclopedia - 34 

Edict of Louis XIV., which, according to Mr. J. puts an end to the 
question. True construction of that Edict. It did not change the an- 
cient law of France, nor give alluvions to the king. Further authorities 
in support of this construction, and of the general law of France, as 
stated. Cujas. Boutheiller. Bacquet. Ferriere. Salvaing. Berthollet 
Dufferier. Le Fevre de la Planche. Larve. Renusson. De Liege. 
Mailhe Berryer. Dumoulin. Domat .... 39 

The same provisions established and sanctioned by the Napoleon Code. 
Statement of the old law respecting alluvions made to the legislative 
assembly of France by the Counsellor of State, Mr. Portalis, on pre- 
senting the articles of the pr»jet de Code on the same subject. His ob- 
servations on the successful opposition made by the Parliament of 
Bordt aux to the king's claim of alluvions, styled by Mr. J. a rhetorical 
flourish, and why? ... . . - 50 

Opinions of the different Tribunals of France consulted by Bonaparte 
on the provisions of the new code, and their statement of the old es- 
tablished law respecting alluvions. Disingenuous answer of Mr. J. to 
these authorities -*.-.-- 51 



vn 

Page 

Series of adjudications in the French Tribunals, prior to the late revo- 
lution, and beginning as early as the year 1769 in f; vour r.f the doc- 
trine for which I contend. No contrary decisions aik gted or shewn - 51 

Report of the celebrated Bordeaux case, from authentic documents. 
Louis XVI. issues an Edict claiming the alluvions of certain rivers in 
Guienne, and orders surveys to be made of the lands claimed. The 
parliament, on the motion of the attorney general, declares the Edict 
null and void and issue their injunction to prevent its execution. Their 
arguments and remonstrances Second Edict confirming the former. 
More remonstrances and injunctions. The king, at last, by an explana- 
tory Edict, declares that he never meant to claim the alluvions formed 
on the banks of those or any other navigable rivers 56 

Distinction taken by the French law between alluvions in the bed and 
on the banks of a river. Two of Mr. J.'s colleagues, nware of this dis- 
tinction, deny the United States' right to the batture under the French 
Edict. Coquetting of Mr. J. to bring them over to his opinion - 61 

Learned dissertation by Mr. J. on the feudal law, the origin of titles to 
land, and the nature of alluvial property. Noticed by the bye, but im- 
material to the present question - - - - - 62 

II. Mr. Jefferson's second point. Alluvions by the civil law accrue only 
to rural not to urban possessions. His argument in support of this doc- 
trine. Ager in Latin and Jlgros in Greek. Learned distinction between 
prcedia rustica and prxdia urbana. Answered by texts from the civil law 
which prove unequivocally that the right of alluvion accrues to city 
property, as well as to fields. Answered also by other learned dis- 
tinctions. Town slaves and country slaves. White horses and black 
horses. Case in point. Stradling v. Stiles 66 

The law of England shewn to agree on this point with the civil law, in 
contradiction to Mr J.'s contrary assertion - -71 

But the batture existed before the lands adjacent to it were converted 
into a suburb, and therefore Mr. J.'s principle, even if it were correct, 
cannot be applied to that property. The fact fully proved, and by Mr. 
J.'s own statements - ----- 76 

III. Mr. J.'s third point; the batture is not an alluvion, but part of the 

bed of the river - - - - ---78 

1. It is not an alluvion, because not incrementum latens, its increase may 
be perceived every six months, after the inundation. Incorrectness of 

this argument ..-..-- ibid.. 

2. It is no alluvion because It has been formed by deposition, not opposi- 
tion of particles of earth, which latter expression is the true transla- 
tion of incrementum latens. New discoveries in the science of Ety- 
mology and in the art of translating from one language into another. 
Theophilusand Curtius. Prosklusis and Proschosis. Curious anecdote 80 

5. It is no alluvion, because not plastered against the adjacent field, nor 
arable like it Not very seriously answered - - - 81 

Reft nee to the plates and to the statements of Mr. J. and his colleagues 

to shew that the batture is really an alluvion - - - 83 

Batture at last defined by Mr. J. Is part of the bed or bottom of the river. 
Move etymologies. Plage, Play a, Piaggia These words and the word 
batturr mean beach. Batture, from hatlre, beach from beotian. Discovery 
t>y Mr. J. of the true pronunciation of the Anglo Saxon tongue - 84 



vm 

rage 

Batture called a shoal by Mr. J. Quibble exposed. Batture and alluvion 

considered as synonymous in Louisiana - - 85 

Answers to Mr. J.'s etymological arguments. The words Plage, Playa, 
Piaggia, do not mean beach, or the narrow band which lies between 
high and low water mark, but the strand above it. Arguments found- 
ed on etymology are trifling. Etymologists can prove any thing. Poto- 
mac from Potamos ...... 87 

But even the bed of a river is only public property when covered with 
water, nor, by the civil law, is there a public property in the soil so 
covered, but only a public use. The same by the Spanish law - 88 

And by the French law, the beach, or the space which lies between 
high and low water, is private property. Decisions of French tribunals 
in point ....... - 89 

Mr. J.'s arguments, taken together, go to prove that there cannot exist 

such a thing as alluvion - - - - - - - 91 

Spanish definition of the bank of a river, including the space between 
high and low water mark. Mistranslated by Mr. J. though he had be- 
fore him a correct translation of it by one of his colleagues. His argu- 
ment, founded on his own interpretation of the Spanish text; but at 
variance with the original ..... ibid. 

The authorities from the French and the civil law, afford room for a 
quibble, by saying that the banks of a river extend to the water's 
edge, when the waters are at their greatest height. Mr. J. thereupon 
argues that the waters of the Mississippi are only at their greatest 
height during the annual period of inundation; and as some of the au- 
thorities use the woi-ds " highest tides," he contends that the overflow- 
ings of the Mississippi are tides. Poetical quotations. St. Evremont 
and Waller - - ....... 93 

Curious proposition directly flowing from Mr. J's. argument. That the 
Mississippi has no banks, and that all that it covers in the time of in- 
undation, where not restrained by dikes, is part of its bed. His endea- 
vour to escape from the absurdity of this proposition, by saying that 
it is of no consequence, as the lands are not yet inhabited or re- 
claimed ........96 

Resemblance between the Mississippi and the Nile admitted on both 
sides, and that the same laws are applicable to both. Laws of the 
Romans respecting the Nile. Have foreseen and rejected Mr. J.'s 
quibbles. Lay down in the clearest terms that what the waters of a 
river cover in the time of inundation, is no part of its bed 
Rights of the sovereign over the bed and banks of rivers. Mr. J.'s pro- 
positions on the subject obscure and contradictory. Granted that the 
public have a right to their use, for certain purposes, and that the 
owner of the soil has no right to erect works so as to impede that use - 101 
■But no previous permission of the magistracy is required, nor can erec- 
tions be prevented, unless complaint is made, and then only security 
is required from the owner that he will not obstruct the public use 102 

The law of the territory of Orleans requiring the assent of a riparian 
jury before an owner of batture -land can advance his lev£e, was made 
subsequent to my dispossession, and therefore Mr. J. blames me un- 
justly for not having obtained that assent - 103 



IX 



Page 



And he adds insult to injury when he says that I might have obtained 
such assent, and resumed my works, after I was dispossessed. For 
the batture was seized as the property of the United States, and no 
local authority could or would interfere with their alleged title - ibid. 

This last assertion inconsistent with the acts of the executive, and with 
all the former arguments used to support them. It is also an aban- 
donment of the claim of property in the United States - - 105 

IV. Mr. J.'s fourth head of defence, that the use which I made of the 
batture was dangerous and inconsistent with the laws of the territory. 
Not true. My works were presented by a grand jury as a nuisance, 
and the presentment was not followed up. Not the business of a 
president of the United States to watch over the police of rivers and 
abate nuisances. It belongs to the local government, and its subordi- 
nate authorities ....... I0f 

This point constitutionally considered .... 408 

If the president had a right to remove the nuisance, he has not done it, 

he has only removed me from the possession of the batture - 109 

Declamation calculated to excite prejudices against me. Pestilence, 
fever, death, destruction, ruin and inundation. Humane conclusion 
that I deserved to be committed to the flames. Secret motives of this 
violent denunciation ...... Ho 

Mr. Jefferson speaks in the plural number, assumes the style of royalty, 

and why? ....... H2 

His proceedings considered in a remedial point of view. His argument 
reduced to three heads. 1. His right to abate nuisantes. 2. His right, 
on general principles, to resume by force property of the United 
States illegally taken. 3. The act of congress of 1807. First point al- 
ready anticipated - . - - ibid. 

Second point. The United States have a right to seize their property 
forcibly, or, as Mr. J. calls it, at short hand. Origin of this term. Pro- 
position denied, and the contrary proved. Spanish law. Law of 
England. How the Roman law, according to Mr. J. is immaterial to 
this case, precisely because it is the only material rule - - 113 

Third point. The act of Congress of 1807. No justification to Mr. J. 
1. Because my case did not come within that act. 2. Because its di- 
rections were not pursued. 3. Because, if it warranted the proceed- 
ings in my case, it is unconstitutional .... 122 

I. My case not within the letter or spirit of the act. Its object squatters, 
and uncultivated lands. Not applicable to city lots. Only to lands 
ceded or secured to the United States, and to those of which posses- 
sion was taken after its passage. But the batture came within neither 
of these descriptions ...... ibid- 

51. Directions of the act not pursued. Removal not to take place until the 
1st of January and afterwards until the 1st of July, 1808, nor before 
commissioners had made their report, and after three months' previ- 
ous notice. The order for my removal was given in November, 1807, 
without waiting for a report of commissioners, and without giving 
me any notice ....... 129 

III. The act, if it comprehends my case, is unconstitutional. 1. It creates 
a confusion of powers, opposed to the nature and spirit of our govern- 



Page 
ment. Effects of such confusion. Exhibited in the present case. 
Striking application of a passage from Juvenal descriptive of the 
tyranny exercised at Rome under Tiberius ... 135 

2. Judiciary power vested by our constitution in a series of regular tri- 
bunals. Danger of committing it to executive officers. Cabinet coun- 
cil said to have been called by the President, and to have ^ivf n an 
unanimous decision in the case. Fact not admitted. Question, how- 
ever, considered ... . 138 

Cabinet Council not contemplated by the constitution, not even for 
executive, much less for judicial purposes. Origin of the practice of 
calling a Cabinet Council. Its tendency and effects. Mr. J. the first, 
if his allegation be true, who erected it into a Court for the purpose 
of deciding on the title to the batture, and on the mode of dispos- 
sessing its owner. Strong reasons to doubt the fact. If true, however, 
it is a violation of the constitution, and does not lessen the President's 
responsibility - - - - - - , - 139 

3. The act in question and the practice under it, are violations of the 
constitution in other points of view Amendments, art 7- Territorial 
ordinance. No man to be deprived of his liberty or property, bat by 
the judgment of his peers, or the law of the land. What is meant by 
the law of the [and? Clearly not an arbitrary act either of the legisla- 
ture or of the executive, or of both. The seizure by force, by either, 
of what the public chuses to call its own, is such an arbitrary act 145 

This principle further explained. If the nation can take forcibly what it 
calls its own, and at the same time cannot be sued, there is no fence 
whatever against tyranny. Illustrated by a statement of what took 
place in my own case. My property seized by force. My fruitless en- 
deavours to obtain a trial of any kind, so that I only should be heard. 
Attendance on the president. On congress. Solicitations — All in 
vain. Pathetic description by Spenser of a situation similar to mine. 
My complaints laughed to scorn, and styled Jtremiades by Mr. J. My 
circular letter to the members of congress, selected as one of the ob- 
jects of his pleasantry. Discussion of the principle that the state 
cannot be sued. Recapitulation .... ibid. 

The true construction of the act of 1807, so well understood at New 
Orleans, that on the appearance of the president's mandate, the 
superior court of the territory issued an injunction to prevent its 
execution. My petition for that injunction, and order thereon - 151 

Mr. J. objects to the legality of the proceedings of the superior court 
of Orleans. 1. Because the United States were not a party to the 
suit between Gravier and the corporation of New Orleans. 2. Because 
the court had no jurisdiction of the subject of the suit. 3. Because 
the pi-ocess of injunction is a chancery remedy, which they were 
not authorised to grant - - - - - 153 

1. The United States not a party. Force of the objection granted, if they 
claimed the batture in their own right and for their own use; but 
they claimed it as trustees for the corporation of N. Orleans, who 
•were parties to the suit. Proofs of this fact. Their title was also 
brought forward before the court in bar of the plaintiff's recovery, and 
on a full hearing judgment was given against it - 154 



XI 



Page 



2. The court had no legal cognizance of the cause, because the United 
States cannot be sued in any court without their consent. Answer to 
this argument anticipated, (p. 145.) The corporation of N. Orleans, 
by Mr. J's. own acknowledgment, were in possession of the batture, 
and might legally be sued ..... 156 

o. The court had no right to issue an injunction, to quiet a possession, or 
to try without a jury. These modes of proceeding belong exclusively 
to a court of chancery, and by the territorial ordinance, the judges of 
the superior court have only common lav> jurisdiction. Answer. This 
objection is a mere quibble, a play on the words " common lav: and 
chancery." Mr. J. acknowledges that the former do not mean the com- 
mon law of England, but the common law of Louisiana, which is the 
Soman civil law From this law, indeed, the English chancery pro- 
ceedings have been borrowed, but it is not the less, on that account, 
the common law of the land. Injunction and quieting of possession, are 
among the ordinary forms of proceeding, and have proper Latin 
names in the civil law. A court may translate technical terms from 
Latin into English without exceeding its jurisdiction - - 157 

Answer to the objection that the Court proceeded without a jury — The 
judges, says Mr. J., shuffled themselves in the place of the jury. False and 
unjust accusation. Trial by jury unknown to the civil law. Act of con- 
gress directing that causes in the Territory of Orleans, shall be tried 
by a jury, if either oftfie parties require it. The defendants had full op- 
portunity to demand a jury trial, but did not chuse to do it, and why? 
The president knew all these facts, and yet makes this serious charge 
in the face of them Against men of his own appointment. Against 
men whom he calls respectable, and whom he knows to be so - 161 

General recapitulation ...... 167 

Under this view of the case, can the president justify himself by means 
of the plea of honest error? Answer: No. Because error in judgment 
does not in general excuse an executive or ministerial officer. It only 
excuses him when he is directed by law to act according to the re- 
sult of his own opinion, and when there is no constitutional bar to his 1 
being invested with such discretionary power But neither were the 
case in this instance, therefore, error in judgment is no excuse for the 
act complained of. Nor can any bad consequences arise from this re- 
sponsibility - - - - - - 171 

But did the president, in this case, really err in judgment? If so, why 
did he select my batture from so many others similarly situated, and 
equally with mine the property of the United States, and their 
owners, not like me, in possession by the judgment of a competent 
court? Nothing peculiar in my title, but what made my case more . 
favourable than that of the other riparian owners. In other respects, 
their situation, their rights were, the same as mine. Probable motives 
of the late president's conduct. Conclusion ... 173 

Postcnpt. Judgment of the District Court of the United States for the 
state of Louisiana, declaring Mr. J.'s proceeding to have been illegal, 
and restoring me to the possession of the batture - - 178 

Appendix 179 



PLATE 




JPLATi: H. 




(/,.;-,;-//,///(0 to r/t,- typress Swamp, 24. feet 20 inch es. 



ANSWER TO MR. JEFFERSON. 



WHEN a public functionary abuses his power by any act 
which bears on the community, his conduct excites attention, 
provokes popular resentment, and seldom fails to receive the 
punishment it merits. — Should an individual be chosen for the 
victim, little sympathy is created for his sufferings, if the inte- 
rest of all is supposed to be promoted by the ruin of one. The 
gloss of zeal for the public is therefore always spread over acts 
of oppression, and the people are sometimes made to consider 
that as a brilliant exertion of energy in their favour, v/hich, when 
viewed in its true light, would be found a fatal blow to their 
rights. 

In no government is this effect so easily produced as in a free 
republic: party spirit, inseparable from its existence, there aids 
the illusion, and a popular leader is allowed in many instances 
impunity, and sometimes rewarded with applause for acts that 
would make a tyrant tremble on his throne. This evil must exist 
in a degree; it is founded in the natural course of human pas- 
sions — but in a wise and enlightened nation it will be restrained 
—and the consciousness that it must exist, will make such a 
people more watchful to prevent its abuse. These reflections 
occur to one, whose property without trial or any of the forms 
of law, has been violently seized by the first magistrate of the 
Union — who has hitherto vainly solicited an inquiry into his 
title, who has seen the conduct of his oppressor excused or ap- 
plauded, and who, in the book he is now about to examine, finds 
an attempt openly to justify that conduct upon principles as 
dangerous as the act was illegal and unjust. — This book relates 
to a case which has long been before the public, and purports to 
be the substance of instructions prepared by Thomas Jefferson, 
late president of the United States, for his counsel in a suit in- 

A 



stituted by me against him.— After four years* earnest entreaty, 
I have at length obtained a statement of the reasons whic; 1 in- 
duced him to take those violent and unconstitutional measures 
of whfch I have complained. 

It would perhaps be deemed unreasonable to quarrel with 
Mr. Jefferson for the delay, when we reflect how necessary Mr. 
Moreaii's Latin and Mr. Thierry's Gret-k, Poydras's elegant in- 
vective, and his own Anglo Saxon researches were, to excuse an 
act for which at the time he committed it he had no one plausible 
reason to allege. Such an act, certainly, is easier to perform 
than to justify, and Mr. Jefferson has been right in taking four 
years to consider what excuse he should give to the world for 
his conduct, and still more so in laying under contribution all 
writings, all languages, all laws, and in calling to his aid all the 
popular prejudices which his own conduct had excited against 
me. He wanted all this and more, to make a decent defence. 
But it was rather awkward to press into his service facts which 
it is confessed he did not know at the time, and something worse 
than awkward to impose on the public, as I shall shew he has, 
hy false translations and garbled testimony . But we must excuse 
the late president; " his xvish had rather been for a full investi- 
gation of the merits at the bar, that the public might learn in 
that way, that their servants had done nothing but xvhat the laws 
had authorised and required them to do;" and " precluded 
now from this mode of justification, he adopts that of publish- 
big what xvas meant originally for the private eye of counsel™ 
I give the words of the author here, lest in this extraordinary 
sentence I should be suspected of having misrepresented or 
misunderstood him. An individual holding a tract of land under 
one whose title had been acknowledged and whose possession 
had been confirmed by a court of competent authority, is vio- 
lently dispossessed by the orders of the president of the United 
States, without any of the forms of law and in violation of the 
most sacred provisions of the constitution; the ruined sufferer 
seeks redress, first by expostulation; — he offers to submit to the 
decision of indifferent men, and he is refused; — he offers to 
abide by the sentence of men chosen by the president, and he is 

* See in my correspondence with the attorney general, page 14, the ineffec- 
tual entreaties I used to obtain a copy of his opinion and a statement of the 
reasons on which he acted. 



refused;— he offers in the simplicity of his heart to acquiesce in 
the opinion even of the president himself — and he is refused. 
He is not even permitted to exhibit his proofs. Fearing the con- 
viction they would produce, he is told that though the president 
could take, he cannot restore; that he can injure, but not redress; 
and that congress alone are competent to grant him relief. To 
congress, then, he applies; — here the same baleful influence pre- 
vails. After two voyages of three thousand miles each, after 
two years of painful suspense and humiliating solicitation, after 
an attendance of three sessions, he finds that no means can be 
devised for his relief, that the friends of that man who " wishes 
for a full investigation of the merits at the bar" defeat every 
plan for bringing the cause before a court, vote against every 
law providing for a trial, and effectually, as they think and he 
hopes, bar all access to any tribunal where the dreaded merits 
©f the case could be shewn. — Harassed but not dispirited, the 
injured party, finding that no legislative aid can be expected to 
restore his property, at length applies by suit for a compensation 
in damages; — he appeals to the laws of his country, and is wil- 
ling to abide by the decision of a jury, in a country where long 
residence, great wealth, the influence which had been created 
by office, and a coincidence of political opinion gave every ad- 
vantage to his opponent.— Here then is an opportunity which a 
man desirous of open investigation will not neglect. The upright 
officer who has been unjustly accused of oppression, will justify 
himself to his country, and cover his accuser with confusion. 
The vigilant guardian of the public rights will defend them 
before an enlightened tribunal, and expose the rapacity of the 
intruder. He who " stands conscious and erect" will rejoice in 
the investigation of his innocence— he will discard every form, 
and proudly dare his adversary to a discussion of the merits! 

But the man I speak of does not do this — the man I speak of 
did not dare to do this. — He feared the learned integrity of a 
court; — he feared the honest independence of a jury. He en- 
trenched himself in demurrers, sneaked behind a paltry plea to 
the jurisdiction, and now publishes to the world, that he is pre- 
eluded from this mode of justification, and that " his wish had 
been for a full investigation of the merits at the bar." \ 

If such indeed were his wish, why was it not gratified? and 
by whom was he precluded horn this favourite mode of defence? 



4 

He does not indeed hazard the direct assertion, that it was the 
unsolicited act of the court. His plea to the jurisdiction, his de- 
murrers, not to mention an attempt to stifle the suit in its birth, 
by a rule to find security for costs;-— all these would too apparently 
falsify such an assmion. But though not stated in direct terms, 
is not the idea strongly conveyed? was it not meant to be thus 
conveyed? When Mr. Jefferson says that the suit was dismissed 
on the question of jurisdiction, and that " his wish had rather 
been for a full investigation of the merits at the bar," what are 
we to conclude? what, I repeat, did he intend we should con- 
clude, but that the decision of the court was unsolicited and con- 
trary to his wish — and yet, he, the gentleman who tells us this, 
had put in a plea to the jurisdiction, that is to say, prayed the 
court to dismiss the cause without an investigation of the merits. 
He did more; — -fearing that this question might be decided 
against him, he put in a demurrer to the declaration, that is to 
say, he took an exception to its form,* and prayed the court a 
second time, that on this account also the cause might be dis- 
missed without an investigation of the merits. He did not stop 
here; a third battery was erected, — he pleaded another plea, that 
he did the act complained of, as president of the United States, 
and that therefore he ought not to be made liable in his indivi- 
dual capacity; and a third time prayed the court that the cause 
might be dismissed without an investigation of the merits. How 
Mr. Jefferson can reconcile these pleas with his wish to obtain 
a hearing on the merits, it is difficult to conceive. The coward, 
who, on receiving a challenge, resorts to the interposition of a 
magistrate, might as well bluster about his desire fairly to face 
his adversary, and complain that he was precluded from giving 
him satisfaction. Yet this preclusion is stated by Mr. Jeffrrson 
as his reason for publishing the work which I am now about to 
examine. He had many advantages in the execution, and pro- 
mised-himself many more in the effects of this production. The 
subject had been fully and ably discussed, but the publications 
on the adverse side were not in many hands. A considerable 

* One of the causes set forth for the demurrer is curious. He objects to the 
declaration, because the plaintiff does not name the servants of the president 
■who committed the trespass, and because they are not made parties to the 
suit: the president of the United States wished the innocent ministers of his 
illegal acts to be made fellow-sufferers with him, for executing his orders!! 



time had elapsed since the subject engaged the public attention. 
He had therefore only to arrange the arguments in his favour, 
to suppress or mutilate the conclusive answers which had been 
given to them, to collect all the quotations which had been used 
is the discussion, to give a new dress and the sanction of his 
name, to the calumnies circulared against his opponent; and he 
would make a book that should astonish by the polyglot learn- 
ing of its quotations, amaz< by the profundity of its borrowed 
research, and delight kindred minds by the poignant elegance 
of its satire. Add to these che advantages of using hearsay testi- 
mony, ex parte testimony, interested testimony, his own testi- 
mony; of quoting authorities with an et cetera for those parts 
which bear against his positions, of omitting a word in the trans- 
lation of a deed, and founding a long argument on the false read- 
ing thus created; add the facility of gaining over to his party that 
large portion of mankind, who find it much more convenient to 
be convinced by the reputation of the author than to examine his 
work; and above all, the hope that disappointment and despon- 
dence might silence his opponent; — and we shall have much bet- 
ter reasons for resorting to a publication of his " instructions to 
counsel" than the alleged preclusion of a hearing at the bar. — 
Whatever may have been the causes which produced this w#rk, 
I rejoice exceedingly in the effect. My wish also had " rather 
been for a full investigation of the merits at the bar," but an ap- 
peal to the public is preferred, and I shall not decline it. Causes 
of less importance have sometimes excited an interest, not only 
in the countries where they originated, but abroad. The des- 
potic king of Prussia could not oppress one of his subjects 
under the forms of law, without exciting the indignation of 
Europe. Lawyers of the greatest eminence took cognisance of 
the affair, and the force of public opinion, even in a military- 
monarchy, obliged the prince to do justice to his vassal. Shall I 
then fear a less beneficial effect, when I can shew that the free 
citizen of a free country, has been deprived of his property by 
its first magistrate, without even the forms of law ? — I do not 
fear it. However dull may be the discussion, however laborious 
the research, it will not deter those who have an interest in in- 
quiring whether their " servant has done his duty," or has been 
guilty of unconstitutional violence.— I invite readers of this de- 
scription to follow me in the investigation I am about to make. 



6 

So much misrepresentation has been used in the discussion, 
that it will be necessary to begin with a statement of facts, which 
shall be as brief as may be consistent with a development of 
material circumstances. 

The Mississippi flows through a country evidently gained 
from the sea, for about one hundred and fifty miles from its 
mouth. On the western side, this alluvial country has a much 
greater extent. As in all lands formed wholly by the deposit of 
rivers, which overflow, the ground is highest near the bank, and 
slopes in an inclined plane to the level of the waters which re- 
ceive those of the river, terminating here at irregular distances, 
in cypress swamps or trembling* prairies. This conformation of 
the soil is very evident and uniform on the Mississippi. The 
surface of the water, when it is not swelled by the rains and dis- 
solving snows above, is at New Orleans about nine feet below 
the natural bank. When swelled to its greatest height, it rises 
about five feet above the level of this bank, and would of course 
overflow the whole country, unless dykes, there called levees^ 
were raised to confine it. These are about the average measures. 
There are places in which they vary, where the natural bank is 
not above five or six feet above the surface at low water, and 
wHfcre, of course, an embankment of nine feet and upwards, is 
necessary to restrain the water in its swell. Fig. 2, plate 2, 
represents this natural and artificial bank, with the general sec- 
tion of the shores and adjacent land. 

The Mississippi is a deep, rapid, meandering and turbid 
river. From these characters it results, that where it flows, as it 
generally does through a light soil, it makes frequent encroach- 
ments on the one bank; and wherever the water become stag- 
nant behind a point, or at the edge of an eddy, leaves a deposit 
on the other. Should this deposit be made in the middle of the 
river, it forms a sand bank, and when it arises above the surface 
of the water, at its natural height, an island. But if the deposit 
be made as it generally is, adjacent to the bank, it then becomes 
what is called in the country a batture or alluvion. These bat- 
tures, low at first, gradually rise, by successive deposits, above 
the surface of the water at its natural height; and when they are 

♦Those marshes which have not acquired a sufficient consistency to pro- 
duce trees, and shake to a considerable distance when trodden on, are in 
Louisiana called prairies tremblantes. 



7 

encreased, so as to leave not more than five or six feet water 
upon them at the time of the inundation; — that is to say, when 
they attain the height, or nearly the height of the natural bank, 
the proprietor of the land in front of which they are formed, 
generally raises a new embankment or levee, so as to include the 
soil thus created, and protect it from the inundation. The land 
thus gained, becomes incorporated with the original plantation; 
the old embankment is suffered to decay, and the road is gene- 
rally removed, so as to continue along the course of the new 
levee. These battures are i ery common on the banks of the 
Mississippi; and as the land is valuable, they are very gene- 
rally reclaimed in the manner I have stated. Plate 1, fig. 1, con- 
tains the surveys of several of these inclosures, situated about 
two leagues below the city, and containing several hundred 
acres, which have been embanked since the change of govern- 
ment, by the planters whose names are found on the plan; 
five hundred other instances at least could be given. A still 
more striking example may be found in the plan of the very 
lands now in dispute, (plate 2,) where the successive appro- 
priations of the alluvion are laid down, from the first in the 
year 1726, of which the traces still remain, to those made at the 
present day. The premises in question are lands of this descrip- 
tion, differing in nothing from the other alluvions or battures on 
the Mississippi, and only rendered remarkable by the illegal 
attempts which have been made to deprive the proprietor of 
their enjoyment. It may be proper also to add, that the batture 
of the suburb St. Mary, as will be seen from an inspection of 
the plan, is only the lower portion of a very large alluvion 
formed below the point A; that the eddy by which it has been 
formed, is occasioned by the projection of that point, and natu- 
rally runs to it; and that no works can at all impede or hasten 
the formation of the alluvion, unless they project further than 
that point. 

From this description, aided by a reference to the plans, a 
tolerable idea may be formed of the natural features of this 
country, and of the situation and origin of the particular parcel 
of land in dispute. The title to it will be better understood by 
Sl knowledge of the following facts: 

The only lands in the lower part of the province which were 
capable of cultivation, lie immediately on the river or its 



8 

branches, here called bayous; the grants therefore were located 
in an oblong form, extending generally from ten to twenty 
arpents (a hundred and eighty feet the arpent) in front, by 
forty in depth, except in particular situations, in which the na- 
ture of the soil induced the grantee to take a greater extent 
back. The road runs parallel to the river, generally within the 
embankment, but sometimes upon it. The road, as well as the 
embankment are made and repaired, at the expense of the pro- 
prietor of the land, the whole extent of his front; and severe 
laws oblige him to the performance of this part of the police. 

The expressions used in those grants to designate the boun- 
daries and extent, are generally, I believe I may say universally, 
so many acres fronts or front to the river, (tant d? arpents de 
face, or tant d' 'arpents face au fleuve^ or sur le fleuve)-, and these 
expressions, when thus unqualified, have, without a single ex- 
ception, been considered as giving the grantee a boundary on 
the river. 

The land in question is held under one of these grants, and is 
described as thirty-two arpents deface sur le fleuve St. Louis;* 
for though the original patent (here called concession) be lost, 
yet we have a record of this part of its contents in the proceed- 
ings hereafter referred to. 

This land was acquired by the order of Jesuits in three dif- 
ferent purchases: one in the year 1726, from Mr. de Bienville, 
the governor of the province; another from the same person in 
the year 1728; and a third in 1743, from a Mr. Breton. 

In the year 1763, the order of Jesuits was abolished in France, 
and all its estates forfeited to the crown. Although the province 
had then been ceded by France to Spain, yet as the treaty was 
still secret, and was not executed until six years afterwards, the 
edict of confiscation took place for the benefit of the crown of 
France, and under it the estate of the Jesuits at New Orleans 
was seized. These thirty-two arpents forming a part of it, were 
divided into six lots, and sold at auction by the same usual de- 
scription, so many acres front. The part of this land adjoining 
the city, was purchased by persons from whom it passed, by 
regular conveyance, to Bertrand Gravier, who cultivated it as a 
plantation. In the year 1788, Bertrand Gravier divided the 

* French name for the Mississippi. 



9 

front part, lying within the road, into two ranges of lots; in 1790 
he enlarged the plan by adding three other streets in the rear, 
and at different times sold all the front and some of the rear lots 
to purchasers. 

In these sales he describes the front lots, some of them as 
"fronting the levee" some as fronting the river, conformable to 
the plan which accompanied the deed. In some of them he ex- 
pressly conveys the batture in front of lots sold, reserving, in a 
few instances, the right to take earth from it for his brick-kiln. 

Some of these deeds, conveying parts of the batture, are as 
early as 1788, and none of them are later than 1794. 

In the year 1803, John Gravier (then become the proprietor) 
made an inclosure of about five hundred feet square on the bat- 
ture. Prior to this, he does not appear to have interfered with a 
practice which the citizens of New Orleans had been in, of 
digging sand and earth from it. That property, however, was now 
becoming valuable, both from its gradual accession of height 
and extent, and from the growth of the town in its vicinity. 
Finding that the city and its inhabitants claimed as a right 
what he and his ancestors had only suffered from inattention, 
John Gravier determined to bring the pretensions of the city to a 
legal test. He commenced a suit for the purpose of being con- 
firmed in his possession, and to prevent the city from troubling 
him with their groundless claims. This suit was pending for 
near two years; it was heard at three different times, and at 
length, by the unanimous opinion of the court, decided in favour 
of the plaintiff. During all this time, no suggestion was made 
of any title in the United States. The city alone claimed the 
right of servitude* on the land, and (after the suit was com- 
menced) the right of property. Immediately after the judgment 
it was however discovered by the corporation, that they had 
been defending a false claim. Their counsel moved for a new 
trial, on the ground that the title was in the United States. 
Most of the arguments since addressed to the public to prove 
this position, were then urged to the court, but without success; 
the judgment was confirmed and executed in the month of June, 
1807. * 



* Servitude in the sense here used, in the civil law, is equivalent to the 
right of commonage for digging earth at the common law 

B 



10 

One of Gravier's vendees beginning to improve the property, 
was for some time impeded by a tumultuous assemblage of peo- 
ple, who, however, did not very long continue to oppose violence 
to the laws. He was suffered to proceed, and after he had ex- 
pended upwards of thirteen thousand dollars in improvements, 
and a much larger sum in new purchases, a mandate arrived 
from Washington, ordering the marshal of the district to dis- 
possess him by force. When astonishment and incredulity were 
forced to yield to the certainty of this extraordinary fact, the pro- 
prietor presented a petition to the superior court, and prayed 
their interference to prevent the execution of this illegal order; 
it was granted, and an injunction was delivered to the marshal, 
commanding him to desist from the execution of the mandate. 
This writ was however disregarded; an armed force was col- 
lected, and the proprietor was forced to abandon his possession; 
and from that time to the present, he has been employed in in- 
effectual attempts to obtain relief. 

This is a general sketch as well of the situation of the proper- 
ty, as of the title by which it is held, and of the events which led 
to the controversy. It is but an outline which will be filled up 
in discussing the different points made by Mr. Jefferson to jus- 
tify the conduct which he presumes to call, " Proceedings of 
the Government of the United States." 

After some preliminary observations, which shall be noticed 
under their proper heads, the author enters on his subject. Its 
first division is an attack on the title of one proprietor in favour 
of others. This objection was with propriety raised on the trial 
of the cause at New Orleans; though unfounded in fact, it was 
not there absurd in its application, as it is when used by Mr. 
Jefferson. The only questions which it imports him to discuss 
are, Did the land belong to the United States? Had the govern- 
ment a right to seize it? Now whether belonging to Gravier, 
or sold to the front proprietors, the land was in neither case the 
property of the United States; and its seizure was equally un- 
justifiable. 

The objection, I have said, was raised on the trial, and the re- 
port of the case shews it to have been conclusively answered. 
Gravier claimed the alluvion, because he was the proprietor to the 
water's edge; and he claimed to be the proprietor to the water's 
edge, by virtue of the general expressions, "face sur lejleuve^ 



11 

which it is not denied give that extent to all the grants in the 
country. Having, after a very considerable accretion had been 
gained by alluvion to his land, sold a line of lots along the road, 
which I have described as running within the levee, it was con- 
tended that because some of the deeds for these lots used nearly 
the same expression, face au fleuve, that is fronting To the river, 
not as in ours, fronting on the river, a similar construction 
ought to be given to the expressions in both instruments, and 
the dilemma which the author urges with so much triumph, 
was, like most of his arguments, worn out before he took it into 
his service. The answer to this argument was a concise one. It 
was, that in the cases where these expressions were used in the 
deeds of the front proprietors, they were not, as in the case of 
our grant used alone, that they were restricted by a reference to 
the plan, and that this plan bounded the lots, not by the river, 
but by a line drawn across their front on the street; and an un- 
controvertible text of law was cited to shew, that wherever such 
a boundary line existed between the land and the river, the pro- 
prietor of the lot could not claim the alluvion, for the plain rea- 
son, that he was not the proprietor to the water'3 edge, and that 
therefore, what was added by the water was not added to his 
land, but to the land which lay between his front boundary and 
the river. This explanation the late president of the United 
States does not like; it is compendious, he says T but not clear; 
it wants explanation, and, to use his own phrase, he " spreads it 
open" for examination; he selects one of the deeds, that to 
Nicholas Gravier. It conveys two parcels of lots, one of thir- 
teen, fronting the river, and another of forty-five, in the rear, 
by other boundaries, u in conformity to the plan." Then follows 
a page of reasoning to shew, that the words, in conformity to 
the plan, do not relate to the thirteen lots in the front, but to the 
forty-five in the rear; and on what, reader, do you think this 
reasoning is founded? Would you believe it? — on the omission of 
a troublesome word. The original is explicit; after describing 
both parcels of lots, it says, "the whole {todo) in conformity 
with the plan; which having been drawn by Don C. L. Trudeau, 
I have delivered to the purchaser," Ike. It must be confessed, 
that for a man who wanted to shew that the reference to the 
plan was applicable only to a part of the lots, this expression, 
" the whole," " all," was the most embarrassing that could be 



12 

devised. What was to be done? Preserve it in the original 
Spanish, which not one in a thousand of his readers can under- 
stand; omit it in the translation, which every body will suppose 
accurate in so learned a work; and then argue from the omis- 
sion, that the reference to the plan related to back lots only.* Of 
some of my reasoning the late president says, " that it is impos- 
sible to characterise it respectfully." What shall we say to this 
specimen of his own? 

The whole argument on this head is of a piece. The sale to 
N. Gravier is selected, as if those to all the other proprietors 
contained the same expressions; whereas, a very great propor- 
tion refer for their front, not to the river, but to the levee; 
(haciendo f rente a la levee de este rio) and among these, is the 
deed to Mr. Poydras, who, in one of his publications, has the 
effrontery to say, " My deed of conveyance expressly contains 
these terms, fronting the river, without any reservation." 

In several others the batture is expressly granted, and I have 
purchased from the grantees. I have paid ten thousand seven 
hundred dollars for parts of it, which were thus sold; and yet 
this, as well as the other, has been taken as the demesne of the 
United States. Now Mr. Jefferson (to return him his dilem- 
ma) either knew that this description, contained in the deed to 
N. Gravier, was not that used in the others, or he did not know 
it; if he knew it, he is unpardonable in concealing from the pub- 
lic, to whom he affects to make a candid appeal, so material a 
difference. If he did not know it, he confesses that he has de- 
prived a citizen of his property, without being acquainted with 
the nature of his title. He must take one of these consequences, 
or he must acknowledge that the circumstance is totally imma- 
terial to the issue. If material, the whole evidence ought to 
have been offered; — if immaterial, no part of it. 

I think I may therefore dismiss this first head of justification, 
and that I may, without flattering myself, believe that I have 
shewn it both immaterial to the defence of the late president, and 
destitute of any foundation if material; — I have shewn that none 
of those front proprietors can be considered as owners of the al- 
luvion, because their deeds refer to the plan, which does not carry 
them to the river; because very many of them refer not to the 
river, but to the levee, as their front exposure; and because those 

* See Jefferson, p. 7 



13 

who have an express conveyance, (except one) have disposed ol 
their right, by sale, to the present claimant; and in all events, 
if theirs, it ought, as their property, to have been as sacred 
as if mine. 

Having thus secured the rights of the front proprietors, this 
provident magistrate next takes the co-heirs of John Gravier 
under his paternal care. He has discovered that John Gravier 
(in fraud of his brothers and sisters, as he charitably insinuates) 
procured the property of his deceased brother to be adjudged 
to him; that this batture was not comprised in the adjudication, 
and that it therefore remains the property of the heirs. — And 
what then, sir? Why if this statement be true, J. Gravier as one 
of the three heirs would have a right to convey his undivided 
third; but surely it gives none to you to take it away from his 
grantee or from the co-heirs in France. — As however, I know 
it must give great satisfaction to a mind so feelingly alive to the 
interest of absentees, to know that they are not dissatisfied with 
the transaction, I have the pleasure to inform you, that they 
have ratified their brother's sale of the batture, and that their con- 
cerns need no longer occupy your attention. Mr. Jefferson how- 
ever, when he wrote his book, did not know this circumstance. 
Let us do him justice and attend to his reasoning from the facts 
before him. — On the death of Bertrand Gravier, an inventory 
was taken, according to the terms of it, " of all the effects and 
■property of the deceased." — At the time of his death he owned 
the plantation in question, excepting such lots as had been sold. 
The plantation therefore as it stood, after deducting the quan- 
tity sold, was to be put in the inventory, and it there stands 
thus: " Item, are placed in the inventory, the lands of this habi- 
tation* whose extent cannot be calculated on account of his hav- 
ing sold many lots, but Mr. N. Gravier informs us that its 
bounds go to the forks of the Bayou." — After the inventory 
was complete, appraisers were appointed to estimate its value; 
and in their appraisement the plantation stands thus: 

" Item, about thirteen acres of land, at which the habitation 
is estimated including the garden, of which the most useful part 
is taken off in the front; the residue consisting of the lowest part 
which is enclosed in very bad fences, the side being sold to Don 
J. Navarro, one Percy, and the negro Zamba; a portion of the 

* Habitation in the provincial language is synonimous with plantation. 



14 

best of which acres with twelve negro cabins, the appraisers 
estimate at one hundred and ninety dollars the front acre, with 
all the depth, which makes two thousand four hundred and 
seventy dollars." 

After these preparatory steps follows the adjudication, which 
is in these words: 

" Having seen the proceedings, and in consideration of the 
consent of J. P. Guinault, defender of the absent heirs, the 
effects, real estate, moveables and slaves, which have Been 
inventoried as belonging to the estate of his deceased brother 
Bertrand Gravier, who died intestate, are adjudged to John 
Gravier at the price of the estimation." 

After this adjudication John Gravier was put in possession 
(as appears by the record) of all the effects and property be- 
longing to the succession of Bertrand Gravier, according to the 
Inventory. 

Now what appears to have been adjudged to John Gravier by 
these documents? All the estate of his brother which was put into 
the inventory. What was put in the inventory?-»-the plantation, 
deducting the lots which were sold. — If the batture was a part of 
the plantation of B. Gravier, and if at the time of his death it 
was not sold, it belonged to John Gravier by the adjudication. 
But it ought to have been particularly specified in the inventory 
under penalty of confiscation.— It was just as necessary to in- 
sert the cypress-swamp, the wood, the meadow, and the rice 
field, as the batture; they were all equally parts of the plantation 
or farm, and though there are more than five hundred battures 
in the country, yet not in a single instance have any of them 
been inventoried separately from the farm to which they belong. 
The remainder of the plantation after deducting the lots sold, 
being then adjudged to Gravier, he was as much entitled to it 
under this conveyance, as to any other acre of land which it 
contained. But whether purchased by John Gravier or not, he 
had a right to sell his own third, and the co-heirs by their rati- 
fication have confirmed the sale for the residue. So that this 
objection is at rest, and we are now prepared to accompany Mr. 
Jefferson in his attempt to shew, not that the property belongs 
to another, but that it does belong to the United States, and 
that he had a right forcibly to seize it. But we are not so soon 
to be gratified; more prejudices are to be excited against the in- 



IS 

>ured proprietor; — another attempt is to be made, to show that 
his title is defective, — as if changing the party injured would 
lessen the offence. The title of Mr. Delabigarre, under which 
I claim a part of the lands, is said to be illegal, and of course, I 
suppose, void. But if so, does it vest any title in the United 
States; admitting that he were guilty of champerty, no new title 
would thereby accrue to them. The parties might be punishable, 
the deed might perhaps be declared void, but the United States 
acquire no rights which they had not before. Why then is the 
subject introduced? Because, in a bad cause, it is easier to ad- 
dress the passions and prejudices of men, than to consult their 
reason, or convince their understanding;— because it was sup- 
posed that the name of Mr. Jefferson would give new currency 
to the forgotten calumnies of New Orleans; and because some 
men can never forgive those whom they have injured. 

The repetition of this charge might be excused, if it had not 
before been repeatedly resorted to — if Mr. Jefferson had not 
seen the refutation, and if he had not the evidence of the fal- 
sity of the charge before him. 

It is begun by an allegation (page 11)," that for six years after 
his purchase, J. Gravier never manifested a symptom of own- 
ership until Mr. Livingston's arrival from New- York;" and 
that then Gravier received his inspirations that the beach (as 
he chooses to call it) was his; that I tempted him to lend his 
name to the suit, but really prosecuted it for my own benefit. 
This charge is made with an air of levity, and a wretched at- 
tempt at wit, which could proceed from no one but a man hard- 
ened by repeated attacks on his own character, into a total in- 
sensibility for that of others. I Jtrst gave the idea to Gravier* 
that the property was his!-— yet ten years before my arrival, his 
brother had, by four several recorded deeds, disposed of dif- 
ferent parcels of it; — and Mr. Jefferson, who makes the charge, 
knew this fact. I first stirred up a dormant claim! — yet I did 
not arrive until the 7th day of February; and in December pre- 
ceding, a square of five hundred feet was begun to be inclosed 
with a levee and ditch,* and Mr. Jefferson had evidence of the 
fact. I first gave Gravier an idea of his claim! — and yet previous 
to my purchase, he had agreed to sell it to Mr. Clark and Mr, 

• See Appendix, No. I 



16 

Morgan: and Mr. Jefferson had this evidence of the fact, that I 
had published it at the place where both those gentlemen live, 
and that it was never contradicted.* What does he oppose to 
this mass of proof? Nothing but an assertion, that he " might 
safely presume that Gravier's work was not begun, while the 
French governor thought the country belonged to his master," 
and most probably not until after my arrival. Now, he knew, that 
I had arrived in February, 1 804, and he acknowledges that the in- 
closure was ordered to be destroyed on the 22d of that month; 
— so that Mr. Jefferson thinks it probable, that arriving in 
New Orleans on the 7th day of February, I should immedi- 
ately find out Gravier, inspire him with so much confidence, as 
that at my persuasion, he should set up a most unfounded claim; 
proceed to assert it, by making at a great expense, a ditch and 
embankment round a square of five hundred feet, that is to say, 
two thousand feet of levee; and that this plan should be formed 
by a perfect stranger in the country, communicated to a man he 
had never seen before, and that the whole should be executed 
in fourteen days from the time that he first touched the shore. 
This, Mr. J. thinks so probable as to counterbalance oaths, re- 
cords, and the silent assent of those most conusant of the fact, 

* Since writing this passage, I have obtained the following certificate and 
letter, which place the fact beyond dispute. Mr. Morgan was about that time 
a judge of the inferior court, and has since for many years been a member of 
the city council. 

" I hereby certify, that I had agreed to purchase, together with Mr. Benja- 
min Morgan, from John Gravier, the batture in front of the suburb St. Mary, 
prior to the purchase thereof by Peter Delabigarre, in the year 1804. That we 
had agreed on the price (ten thousand dollars), but that the bargain was not 
carried into execution, as Gravier had during my absence from the city, sold 
to Mr. Delabigarre. 

December 17, 1812. (Signed) DANIEL CLARK. 

jYeiu-Orlea?is, March 2d, 1804. 
Daniel Clark, Esq. 

SIR, 

I expect, in your absence to complete the purchase of the strip of land au 
joining the river, from the upper line of the city to the street, passing by 
Girod's estate in the suburb, and I pray you to give me written directions 
where to receive money for your half of the first payment. 
I am respectfully, 
Yours, &.c. 

(Sigrred-i BENJ. MORGAN. 



and most interested in contradicting it; and thus be uses the 
influence of his late exalted station, to perpetuate refuted calum- 
nies, and stigmatize the character of a man, whose fortune he 
had wantonly ruined. 

The contract between Mr. Delabigarre and Gravier, is next 
the subject of attack. It is called ostensible only, and the pur- 
chase made by it, a pretended one; and the reasons given for it 
are, that Gravier commenced a suit in his own name; that he 
afterwards made another deed, without any reference to the 
first; and that in the second deed there was a covenant, that if 
the suit should fail, the sale should be void. This clause, Mr. 
J. supposes criminal, both by the common and civil code, and 
that by the laws of the territory both deeds were void. 

Of the first contract I was conusant; it was made by my ad- 
vice, and immediately after it was concluded, I took an interest 
of one half in the purchase. If there be, therefore, any impro- 
priety in the transaction, I must bear my share of the odium. Of 
the second, I was ignorant, until sometime after it was made, 
and the proof that I was so, is on the records of the superior 
court; for as soon as I discovered it, I thought it injurious to 
my interest, and commenced a suit against Mr. Delabigarre, to 
procure a title for my half of the first purchase. 

But though I had a concern only in the first contract, *I think 
both of them free from the stigma which is endeavoured to be 
attached to them. 

Neither of these contracts was valid as a definitive sale, by 
the laws of the territory: Mr. J. has truly remarked, that by an 
edict promulgated by governor Unzaga, no lands could pass 
Avithout an act before a notary; but though not good as deeds, 
they were valid as contracts, and on performing the conditions, 
the purchaser might enforce a specific performance, if in the 
mean time, the seller had not conveyed them by a notarial act 
to another. They formed, what in the French jurisprudence is 
called the beginning of proof in writing, which was admitted 
as introductory of other evidence, to prove the right, and is 
analogous to the equitable title of the English law. This ac- 
counts for the suit being brought in Gravier's name, and not in 
that of the purchaser. No suit could have been sustained in 
Delabigarre's name, for his title was not complete. The pro- 
perty remained legallv vested in Gravier, though Delabigarre 

C 



18 

might, on payment of the money, force hi in to convey. Ther.e« 
fore, no one but Gravier could sue. 

But why was not the deed made in legal form? Why take a 
private deed, when a public act was necessary to convey the 
property? The reason is obvious: the owner would give no 
other. Mr. Delabigarre had not been two months in the coun- 
try at the time of the purchase; his resources were unknown; it 
was therefore thought most prudent by Gravier, to make no de- 
finitive sale until one of the payments should be made. It is, I 
believe, no uncommon transaction in this or any other part of 
the United States, to make covenants for giving a title, on the 
payment of the price or a part of it; and this, though in terms a 
sale, yet legally amounted to nothing more. A conclusive proof 
that neither concealment nor impropriety was intended, is, that 
the transaction is stated by Gravier, in his petition against the 
corporation, wherein after alleging the disturbances of which 
he complains, he says " by reason whereof persons who have 
contracted for the purchase of parts of this land, refuse to pay." 
And this petition I drew, and signed as his counsel. Now it is 
inconceivable, that a man of common prudence, directed by a 
Counsellor of common skill, would, if they were conscious of ille- 
gality or crime, furnish the evidence of it on record; and still 
more inconceivable, that the court to whom the petition was ad- 
dressed," should not immediately punish so open a violation of 
the laws. 

But there was no illegality. Neither the statute of Henry 8., 
to which Mr. J. refers, nor the text of the Roman law, forbid 
the purchase of any land of which the seller is in possession, al- 
though it should be known there are adverse claims. If it were 
so, it would be an offence to buy lands in a very great propor- 
tion of the state of North-Carolina, on account of lord Gren- 
ville's claim; in the Mississippi territory, on account of the 
English grants; in Kentucky, where, as I am informed, two, 
three, and sometimes four patents have issued under the state 
of Virginia, for the same land; and in every part of the state of 
Louisiana, where the titles are unconfirmed by congress. If this 
monstrous doctrine were true, every purchaser of a farm would 
be guilty of this crime, if the boundary between him and his 
neighbours was unsettled, although the person from whom he 
bought were in possession. 



1.9 

But what possession is necessary to justify a purchase? Clearly 
such a one as consists with the nature of the property sold; if 
of a house or other improved estate, actual occupation, or re- 
ceipt of the rents and profits; but if uncultivated lands, nothing 
is required but that there be an ostensible title, and no acknow- 
ledged adverse possession. How often do we find the opposite 
claimants of tracts of uncultivated land selling their titles by 
regular conveyances without having ever seen the estate. Yet, 
who ever heard of a prosecution under this or a similar statute 
in such a case? 

The proprietor of a farm, with a private road running through 
it, sells the soil of the road, and opens another equally conveni- 
nient for those who have the right of way. He has never had 
any other possession of the road than that which all his neigh- 
bours have had, yet it is not selling a pretended title; the soil 
belongs to him, and he had that constructive possession which 
alone is consistent with the nature of the property. 

To apply this to the present case: the public have a right to 
the use of the space between the levee and the edge of the 
water; (although, as will be clearly shewn in the course of this 
discussion, the soil remains in the proprietor of the adjacent 
land) until he incloses and protects it from the river; — 'till then 
he has no exclusive right, and can no more interfere with the en- 
joyment of it by the public, than he could in the case put of the 
road; but neither in the one case nor in the other does it prevent 
his selling the property, subject to the right which the public have 
of enjoying it; — in the case of the road, until an equally conveni- 
ent one shall be opened; — in the case of the batture, until the 
land shall be inclosed by a new levee, and when this is done, 
the right of public enjoyment will be restricted to the space be- 
tween the new levee and the river. 

John Gravier then succeeding, as has been shewn, to all the 
rights of his brother, the proprietor of the plantation, had a con- 
structive possession of the part of it which lay between the 
levee and the river, in other words of the batture, he had the 
same possession which every proprietor of land on the river has 
to that part of it lying outside of the levee, and having this pos- 
session might sell it, without being guilty of any offence. The 
purchaser, it is true, must take it subject to all the legal rights 
of the public. What these are will be shewn in another part of 



20 

the inquiry; — here the only question is the legality of this pur- 
chase.* 

But John Gravier had more than the constructive; — he had 
of a great part the actual exclusive possession, and was busied 
in the exercise of that right which the other proprietors had of 
advancing their levees nearer to the river. His ancestor had 
by public recorded acts, sold parcels of this very property to 
individuals ten years before. The purchaser, therefore, had a 
fair right to consider him as the true proprietor, even if he had 
notice of the claims of the corporation of New Orleans. As to 
those of the United States, no one ever heard of them until 
after the decision of the suit, — and surely a sale in opposition 
to the claim of the city only, could not be called the sale of a 
pretended title, when that very claim is acknowledged by the 
parties who set it up, to have been a groundless one, by the re- 
peated resolutions they have since passed declaring the title to 
be in the United States, and not as they contended on the trial, 
in the city. 

The nature of the claim set up by the city, even if a suit had 
been pending relative to it, would not have rendered the sale 
illegal. It was the claim of a servitude or right of common, as 
we should call it in English, to dig sand and lay wood, &c. on 
the premises. The land might certainly be sold with the risk of 
this claim pending over it, — or the vendor might take the risk 
upon himself, and if it were established, might lawfully agree to 
rescind the sale. 

The first agreement for a sale, it will be recollected, is for 
only two thirds of the land, and contains no other condition 
than that of paying the money on the part of the purchaser, and 
that of warranty on the part of the seller. The second is dated 
nearly two years after, and is for a larger portion of land, in- 
cluding the first. It contains other covenants, and the circum- 
stances which had occurred, rendered them not only legal but 

* Conformably to this reasoning is the text of the civil lav/. Recte dicimns 
eum fundum totvm nostrum esse etiam cum ususfructus alienus e?t: cumusus- 
fructus non dominii pars, sed servilvtis sit: ut via, et iter. Dig. 50. 16. 25 — 
Now if the totum fundum as the text expresses it, be mine, although another 
have the usufruct or a right of way over it, surely I may dispose of this which 
is so emphatically termed all mine, and a fortiori, I may dispose of it when the 
usufruct, or the servitude is only claimed, but does not exist in reality. 



21 

prudent. The suit had since been commenced, it had been long 
protracted; if the corporation established the servitude or right 
of digging for which they contended, the land would be nearly 
useless to the purchaser. He had, therefore, a right to guar 
against that event, by stipulating, that in case it happened, the 
deed should be void. But, in fact, this stipulation did no more 
than the law would have done without it; — if the claim of the 
corporation had prevailed, the purchaser might by the civil law, 
either have rescinded the sale, or sought a compensation in da- 
mages, at his option; — and surely no covenant can be called 
criminal, which only enforces an acknowledged principle of law. 
I had, as I have said, no agency in this second deed, nor any 
other interest in defending the conduct of those who made it 
than that which is naturally excited, in hearing the memory of 
an unfortunate man, treated with unmerited obloquy and con- 
contempt; — a widow* bereft of reason, two infant children (one 
of them blind) deprived of their bread, are not enough! — the re- 
putation of their father must be wantonly and unjustly destroyed 
before the vengeance of this just magistrate is complete. — Par- 
ties, witnesses,— -all who dare to complain of oppression, — or to 
prove its existence, must be involved in one general proscription, 
that the public may cease to interest themselves in favour of men 
who are represented as so unworthy of their sympathy. But the 
device is too stale to succeed with an enlightened — too odious to 
be favoured by a generous nation; and the mixture of jocularity 
and oppression which it exhibits only convinces us, that the most 
hateful traits in the tyrants of antiquity may sometimes be found 
united with an affectation of republicanism, and of a regard for 
the rights of man. 

While on this subject, let me assure the public, that Mr. 
Parisien, who is most facetiously called a joiner by trade, and a 
comedian by profession, and who it is most charitably insinu- 
ated, was suborned to bear false witness to a most unimportant 
fact, was a man while he lived, of respectability and worth. t — 

* The proceedings of the late president have actually produced this melan- 
choly effect. The relict of the late Delabigarre is confined in a mad-house; — 
his two daughters depend on the benevolence of relations. 

f It will hardly be believed that this serious charge should be made on 
hearsay only. Mr. J. never saw the testimony on which he comments with 
such severity. He has seen only an affidavit of a gentleman who says, that he 
was informed Parisien had given such testimony. 



22 

that Mr. Sigur, who is treated with the same levity,is one of 
the most ancient and respectable inhabitants of the countrv,— - 
and that proof of these facts will be found in the Appendix.* 
It is no excuse for Mr. J. that he has heard what he asserts,— 
he should be certain of its truth before he gives it the sanction 
of his name. 

Having thus, as he supposed, excited a sufficient degree of 
prejudice against his opponent, Mr. Jefferson ventures, but by 
cautious approaches, on something like a justification of him- 
self. — We are first told that the judgment of the superior court 
in the suit with the corporation did not bind r he United States; 
-~^and a page or two is gravely employed in proving, that none 
but parties or privies are bound by a judgment. This is un- 
doubtedly true, and if the rage of making Latin quotations had 
not seized the author, he would without citing the Codex, have 
been content with my acknowledgment of it in my Address, p. 
22, where I state that I sent on my Examination^ with a view to 
prevent the United States from ordering- a suit. That acknow- 
ledgment and this admission, however, are both founded on the 
supposition, that the claim of the United States is one they 
have in their own right and for their own use; — but if, as 
I have since been convinced, those who made the claim on be- 
half of the United States, did it only as trustees for the original 
party in the suit, and for their benefit only, — then, I say, though 
not nominal parties, they are bound. — Nor shall the party really 
interested avail itself of a concealment of the trust, in order to 
procure a double trial on the merits. This subject will be more 
fully developed in another part of the discussion. I proceed 
with the pamphlet. — Having established to his own satisfaction, 
that the United States were not bound by the proceedings in the 
suit which had been determined, the most natural course to be 
expected, would be for the president to institute one to which 
they should be a party; but this was too much in the common 
line. Mr. Jefferson did not like " playing at push-pin with 
judges and lawyers," as he very elegantly terms it; the forms ©f 
law were too slow to satisfy his eager desire to do justice. 
There had been a commotion among the people,— there had 

* See Appendix, No. II. 

| Examination of the title of the United States to the land cailed the Batture, 
published afterwards with my address to the people of the United States s in 
the year 1808. 



23 

been an open opposition to the execution of the laws;— and he 
stems to have had a natural sympathy for those who were 
guilty of it. Profaning the sacred exertions of our first revolu- 
tionary patriots by an assimilation with his own agency in this 
paltry squabble, his imagination took fire at a striking simi- 
larity he discovered between the judgment in the case of the 
batture, and the Massachusetts port bill, between the opening of 
my canal and the " occlusion" of the Boston harbour, — he pants 
for the wreaths of Hancock, Adams, and Otis, — and he bravely 
determines to hurl all the vengeance of the government at the 
unprotected head of an individual, who had nothing for his de- 
fence but the feeble barriers of constitution, treaty and laws. 

Popularity was to be gained, and of that kind which he loves 
the most, — the applause of those who were independent enough 
to resist the decree of a court, and 6et the authority of law at 
defiance. 

In the pages which contain this part of the defence, we are 
presented with the circumstances which induced the president 
to take the measure of ordering me to be dispossessed by the 
marshal; and among them we find several documents which 
are dated at New Orleans, only thirteen days before the reso- 
lution of the privy council at Washington; — but this is a trifling 
obstacle to Mr. Jefferson. Let us suppose that he had before 
him not only all that passed at New Orleans up to the very day 
of the deliberation at Washington, but all the facts he cites as 
having taken place for years afterwards. Let him have the ad- 
vantage of the whole, and see to what it amounts. 

The first of these documents are letters from governor Clai- 
borne, and the extracts that are given, furnish the true motives 
of his conduct. These letters inform him, that Mr. Livingston 
is disliked by the people, and that the decision of the court is 
very unpopular; — they seem too, to have given a true state- 
ment of some of the outrages that were committed in opposi- 
tion to that decision. Here, then, was an opportunity not to be 
lost; — an unpopular man to be oppressed, — a popular claim to be 
supported, — and opposition to the laws to be rewarded. Gover- 
nor Claiborne, it is true, had formed no conception of the mode 
in which this was to be done; — he hints in his letter at an old 
fashioned idea of " devising some means of arresting the judg- 
ment of the territorial court, and bringing the cause before an- 
other tribunal;"— but this suggestion did not coincide with the 



24 

ideas of the gentleman to whom it was made; — he is peculiarly 
unfortunate, although his wish is always for an investigation be- 
fore the tribunals of his country, his practice is always to decline 
their jurisdiction, and he was prevented from following this 
judicious advice of governor Claiborne, in the same manner that 
we have seen him "precluded" from bringing the merits before 
the court at Richmond, — by his own act. 

But it seems the case was urgent, — my worlcs threatened to 
drown the city, — its peace could only be preserved by destroy- 
ing them; — and the land in question was absolutely necessary 
for the use of the citizens. The president, therefore, was called 
on to interpose, — and he could not wait for the slow forms of 
law. — If these things were true, the public are yet to learn by 
what part of the constitution, the president is vested with the 
power to abate nuisances of his own authority, or whether the 
first magistrate of the union, is, ex officio, high constable of the 
city of New Orleans. — If any offence was committed against the 
police of the city, or of the river, and shores, Mr. Jefferson has 
shewn, that a remedy was provided by the territorial laws; — he 
has shewn, that the administration of justice was sufficiently 
vigilant, for he has recited a presentment against these very 
works. — Why, then, did he not trust % that the people of New 
Orleans would have good sense enough ¥ not to suffer themselves 
to be drowned, when they had the means of prevention in their 
power. If the public functionaries, who cannot, I believe, be 
taxed with partiality to me, had thought that they could have 
supported the allegations in the presentment, that presentment 
would certainly have been prosecuted. More than two months 
elapsed between the time of finding it, and the execution of the 
president's order. That presentment could have been brought 
to trial without delay, and if the facts were proved, the works 
would have been destroyed as effectually by the judgment of 
law as by any executive mandate. In that case, however, the 
court must have made it a part of the judgment, that the nui- 
sance should be abated — an inconvenience which was avoided 
by the president's order, which only drove me from the pro- 
perty. The nuisance was suffered to remain, and for several 
successive years served as a safe harbour to boats, and has 
saved thousands of dollars to the public, — while a house which 
was also part of the nuisance?— has been usefully occupied as a 



25 

guard-house by the city. If, then, there were this danger of im- 
mediate inundation, from the effect of my works, there was no 
necessity for the interference of the president of the United 
States;— the great officers of state need not have been called 
from their respective departments, to deliberate on the weighty 
concerns of the police of New Orleans, — and the cabinet coun- 
cil of a great nation might, it must be confessed, at that period, 
have found objects much more worthy their attention. But 
there was no such danger, and I prove it from data given by 
the very work that contains the assertion. — The banks of my 
canal extended from the road 276 feet on the batture. The 
sides were twenty feet wide, and from four to six feet high. 
Now, if I calculate right, this forms a mass of 55,200 cubic 
feet, which would be displaced even if the river rose to the 
full height of the bank by the sides of the canal; — add the parts 
of the levee laid down on Mr. Jefferson's plan 990 feet long, 
by 6 feet high and 6 feet wide, forming 35,640 cubic feet, and we 
have altogether 90,840 cubic feet; — and the displacing this mass, 
Mr. J. thought put the city in such immediate a danger of inun- 
dation, that he states it as a reason for considering the case as 
one of extreme urgency. But we have seen that the works occu- 
pied a space of 90,840 cubic feet; — now, the river being 3600 
feet wide, the length of the works 1066 feet, and the rise of 
the water 14 feet, we have for the increased column of water 
when at its highest opposite those works, 3600 x 1066 x 14 = 
53,726,400 feet, which being divided by the mass of the work, to 
wit, 90,840, we have, leaving out fractions, 591; that is to say, 
that the works displace a quantity of water equal to -^ part of the 
column opposite to them; — and of course, could only raise the 
water in that proportion, that is to say, two lines and ||| parts 
of a line. 

This calculation is made on the idea, that the works were 
erected in the current of the river, but the reverse is the fact. 
From the point A, to the lower part of the town, (see plate 
No. 3), there is no current whatever but an eddy, and there- 
fore no work but such as project further into the river than that 
point can at all change the current. But let us examine by what 
process of calculation Mr. Jefferson draws the conclusion, that 
these works would "raise the water three feet at least, and 
would sweep away the whole levee, the citv it now protects, 

D 



26 

and inundate all the lower country." (JefF. p. 20.) In the first 
place, he encreases the projection of rny embankment from two 
hundred and seventy six feet, as he states it in the preceding 
page, to two hundred and fifty yards. Then he says, the river 
being twelve hundred yards wide, this forms nearly one fourth 
of this width, and as the river rises twelve feet, when it has its 
whole breadth, if you reduce it one fourth, the water must rise 
in the same proportion; but three feet is to twelve feet what 
two hundred and fifty yards is to the whole breadth of the 
riv«r; therefore the water will rise three feet, — which was to be 
demonstrated. It must be confessed that this is most admirably 
calculated. It is a pity to spoil so fine a piece of demonstration; 
but there are a few corrections which must be made, both to 
the proposition and the proof. 

First, we must in point of fact reduce the two hundred 
and fifty yards to two hundred and seventy-six feet, which, in- 
stead of a fourth of the breadth of the river, is, according to his 
calculation, not quite one twelfth. Then instead of three feet, 
I should overflow the levee but one foot, which, by the preced- 
ing calculation, must be reduced to a little more than two lines; 
and in order to effect even this, I must deprive the water of its 
fluidity, or else, according to the usual course of things, it 
would, after passing the end of my canal, spread itself over its 
usual surface; for the plan exhibited by Mr. Jefferson, shews 
that my lower levee was not connected with the sides of the 
canal; unless therefore he could contrive to heap the mass of 
water, displaced by my works, on the surface of the river, and 
retain it there, he can never make it rise even to the fractional 
part of an inch, as I have shewn; and this even if the works 
were erected in the current. But Mr. Jefferson's manuscript 
affidavits, which he cites so frequently, if they say any thing on 
the subject, must say what I have before asserted, that the 
whole of that part of the batture which is inundated is in an eddy, 
and that consequently the current is no wise affected by any 
thing that is done there. The calculations, then, are as erroneous, 
as the facts which he assumes are unfounded. The batture was 
formed long before my works, or any others, were thought of 
in that place. Its progress has neither been hastened nor retard- 
ed by any thing that has been erected there. The puny works 
of man can neither arrest nor hasten the progress of those 



27 

changes which are produced by natural causes, impelling this 
mighty mass of waters. An attentive observer may perceive 
these causes, but as yet no human effort has been able to prevent 
their effects. The river, on an average, is twenty fathoms deep. 
The weight of this prodigious column of water, borne with a 
current of three miles an hour against a loose soil, undermines 
it at a depth which no piles can reach; and whole fields are 
sometimes precipitated at once into this abyss. When these 
excavations take place on a point, the batture formed by the 
eddy below it, becomes itself exposed to the depredations of 
the current.* In the mean time new eddies are formed; they 
become the agents of new deposits, and places which only a few 
years before were covered with twenty fathoms of water, begin 
to shew their heads above the stream. Until therefore some 
such change shall happen in the current of the river, above the 
town, as shall throw its force upon the batture of the suburb St. 
Mary, it will go on increasing in length down the river opposite 
the town, and in breadth towards the other shore. This progress 
was foreseen by Mr. Lafon, an engineer of great professional 
skill, in the year 1804, three years before my works were be- 
gun. The city council, alarmed by the progress which the river 
then made in undermining the levee a little above the govern- 
ment house, in the centre of the city, requested Mr. Lafon to 
devise some plan for defending it. He made them a very able 
report, which I am sorry the limits of my work will not permit 
me to insert, in which he tells them, that any work will be ex- 
pensive and useless; that, by the natural progress of the river 
eating out the opposite bank, and filling up the one above the 
town, the batture of the suburb St. Mary will extend itself oppo- 
site the city, and that the course of the current will then strike be- 
low the town. This has exactly happened, and the effect which 
Mr. Jefferson and his manuscript affidavits ascribe to my levee, is 
found to be produced from natural causes, foreseen and predict- 
ed three years before my works were begun; and there was no 
danger of any of those dreadful consequences which Mr. Jef- 

* The batture in question bears unquestionable proof, in its physical confor- 
mation, of having undergone the change here described. In digging my canal, 
the stumps of a grove of large trees, three feet in diameter, were found in 
their natural position, rooted in the ground, twelve feet below the surface. 



28 

lerson has conjured up to justify his oppression. There was not, 
I affirm, even any inconvenience to be apprehended; on the 
contrary, I am ready to prove, whenever an opportunity is 
given me, that the beauty of the city, and the health, conve- 
nience and commerce of its inhabitants would have been greatly 
encreased if I had completed my plan; and, in the mean time, I 
offer the certificates of the harbour-master, the wardens of the 
port, the commander of the naval force of the United States on 
this station, and all the masters of the vessels in port at the time 
it was taken; all these speak a language which shews the nature 
of the information on which the late president acted, and must 
convince the world, that even the pretence of public inconve- 
nience was wanting, to justify the flagrant outrage.* But it seems 
the peace of the city could not be otherwise preserved. Mr. 
Jefferson says, page 20, that he was " urged by the repeated 
calls of the governor, who declared he could not be responsible 
for the peace or preservation of the place, by the tumults and 
confusion in which the city was held." We must remark that 
we are not favoured here, as in the former page, with an extract 
of these repeated calls; it is given as the substance of sundry 
letters. I wish they had been produced, because I cannot well 
conceive that governor Claiborne, after having on the sixteenth 
of September declared that every thing was quiet, and when in 
fact every thing was so, should write, that he could not answer 
for the peace or even the preservation of the place — that he 
should talk of tumult and confusion, after he had told us, that 
every thing was in a state of tranquillity; and that he should urge 
the president to take violent measures, when his other letters, 
during the continuance of the tumult, only advise a revision of 
the sentence in some other tribunal. 

These dangers, however, (whether real or imaginary the 
reader may now judge), were sufficient in the president's opinion 
to justify the calling of a cabinet council, and we are now pre- 
pared to examine with due respect their important delibera- 
tions. 

We are first told: " They took such views of the whole case, 
as the state of their information then presented." This I under- 
stand; but when Mr. Jefferson tells us in the next sentence that 

* See Appendix. No. 3. 



29 

he will " develop them (that is the views) in all the fulness of the 
facts then known" I confess I am utterly at a loss to discover 
his meaning. What we are to understand by " developing views 
in all the fulness of facts" either known or unknown, I confess 
passes my comprehension; but when he adds " and of those 
which have since corroborated them" I begin to discover that 
this is a phrase purposely rendered obscure, that u seeing we 
might not perceive, and hearing we might not understand." — 
The council had but very scanty materials for this important 
proceeding. — It would not do therefore to give a simple sketch 
of their views, from the proofs then before them; four years 
were to be employed in fostering prejudices, in collecting 
calumnies, in making faithful translations and learned extracts, 
in procuring affidavits, and in all the other honourable means I 
have detected, in order to bolster up this weak, wicked, and 
unconstitutional measure. And they were to be introduced by 
an obscure phrase, which would lead cursory readers to believe 
that the cabinet had all those arguments, facts and laws before 
I them, at the time of their deliberation. 

Let us give them the advantage of all that the diligence, 
ingenuity, and influence of the late president has heaped 
together, for their support, and see on what grounds the deter- 
mination stands. 

The preliminary decision, that the question was to be deter- 
mined by the French not by the Spanish laws, was erroneous; 
but, as both codes are equally favourable to my argument, I 
should spend no time in refuting it, if it were not to shew, that 
by a kind of fatality attached to this proceeding, it was con- 
ceived in false principles, aud has through every stage been 
marked with error. 

The principle that the laws of a ceded country do not change 
by the mere effect of the transfer, is true as to those laws which 
affect the inhabitants in their relations to each other; but is it 
so with respect to those fundamental principles which regulate 
the prerogative of the sovereign, and the right of the subject? 
It appears to me they must of necessity be changed by a ces- 
sion; — that, for instance, which was made of the province of 
Louisiana, absolved the inhabitants from the duty of allegiance 
which they owed to France, and made them, by the very act, 
subjects of the crown of Spain. The same relation was create*! 



30 

between them and their new sovereign, which subsisted between 
him and his other subjects. If that relation gave rights to the 
new sovereign which were not due to the old, the people were 
bound to submit; on the contrary, if the people to which they 
then became united had greater privileges, these were imme- 
diately communicated to them, and the new sovereign could 
not, without injuring the fundamental laws of the kingdom, at- 
tach to himself greater prerogatives in this, than he had in his 
other colonies; and even if the right of alluvion were inherent 
in the crown of France, it may reasonably be doubted whether 
that right passed by the transfer of the province to the king 
of Spain. If a province of France should have been, under 
the old monarchy, ceded to Spain, so as to be incorporated 
with that kingdom, I am inclined to think that the droit d y au- 
baine, and other local rights of the crown, would not by the 
very act of transfer be vested in the king of Spain. — I do not 
urge this argument as conclusive, but I think it has some 
weight, and deserves abstractedly more development than its 
importance in this inquiry will excuse. 

But whatever may be thought of these principles, there is 
another more generally acknowledged, which applies directly 
to the case; — it is, that the ancient laws of a ceded country are 
in force, only until the new sovereign shall direct them to be 
changed.* This principle is not denied in the work to which I 
reply, but we are told that the sovereign never made such an 
expression of his will in Louisiana, and the very instruments, 
on which I might rely (even without other proof) to evince the 
change, are cited to shew that there was none. 

O'Reilly's proclamation in 1769, it is acknowledged, changes 
the form of government. This, it is said, might be done while 
the system of law remained; this is true, but what do we do 
with the remainder of the sentence? It is not only the form of 
political government (Jeff. p. 22J but the " administration of jus- 
tice prescribed by the wise laws of Spain," which are declared 
to be introduced. The proclamation details the new offices and 
the duties of the officers, and it is accompanied by instructions 
" for the instituting and carrying on civil and criminal suits, 
and rendering ordinary judgments conformably to the Recopi- 

* 1 Blackstone's Com. p. lO?. 



31 

/acton, (or Digest of the laws) of Castile and of the Indies, for the 
government of the judges and parties, until the Spanish language 
shall be more familiar, and a more extensive knowledge of those 
laws shall be attained." 

This proclamation and the instructions both refer to the laws 
of Spain as forming the code of the country, the first of these 
instruments by general words, the second more particularly, to 
the laws of Castile and the Indies, of which the instructions 
contain such an abstract as was required for daily use. — But 
neither the proclamation nor the instructions were necessary 
for the introduction of the Spanish laws. A code had been long 
prepared for the government of the Spanish colonies in the In- 
dies, by which name they designated all their American pos- 
sessions. It is called the " Recopilacion de las Leyes de las In- 
dias."* It introduces the law of Castile, those of the Partidas, 
and of Toro; that is to say, the whole body of the laws of 
Spain, in all cases not provided for by the laws of the Indies,! 
and declares that the laws of that collection shall prevail in all 
the Spanish colonies, as well those then established, as those 
which might in future be discovered or established. 

The moment then, that Louisiana became a Spanish province, 
it was subjected dejure, to the system of laws I have described; 
and de facto, none other has had the slightest authority since 
the transfer. Whence therefore Mr. Jefferson has derived his 
idea that the French and Spanish laws were confounded in 
practice, I know not; certain it is, that in all their tribunals 
none but Spanish laws were cited by the advocates, or admitted 
by the judges; that the assessors by whose advice all decrees 
were rendered, were Spanish, not French lawyers; that in their 
official opinions, they referred only to the laws of Spain and the 
Indies, as their rule of decision; and that " the changes after 
1769, were not, as is supposed, chiefly in the organization of 
the government, but that they also pervaded the whole system 
of jurisprudence." 

It is admitted that the French laws were in force at the time 
of the sale of the Jesuits' property; but it is not admitted that, as 

* Leyes de Indias, Vol. I. lib. 2. tit. l,laws 1st and 2d. 
f It establishes for the government of all those possessions a royal counci 1 
called the Oouneilofthe Indies 



32 

Mr. Jefferson alleges, the question " was then generated" The 
generation of the question could not have taken place before 
the property existed. Now there is not the slightest evidence of 
any increase by alluvion, between the year 1763, the time of the 
sale of the Jesuits' property, and 1769, the period of the transfer 
of the province. On the contrary, Mr. Laveau a witness for the 
city declares " that at the time of the sale of the Jesuits' pro- 
perty, vessels came to the levee, opposite to Madame Delor's,* 
and that there was then no batture from thence to the city." 

Whatever unanimity therefore might have reigned in the 
cabinet as to the laws they were to be governed by in their ex 
parte trial of my title, the impartial reader will, I think, perceive 
at least some doubts as to the correctness of this preliminary 
decision. These doubts will be increased, when he peruses the 
report of the attorney general, a member of that cabinet. With 
a candour which does him honour, he says " the facts from 
which alone the law can arise, are much controverted. These 
must be correctly ascertained before a satisfactory opinion can 
be formed," — and again, " All the light afforded by the state- 
ments and papers on each side, was not deemed sufficient to as- 
certain with precision the facts. The law itself which should 
furnish the rule of determination, was also a matter of contro- 
versy; perhaps it might be considered not improperly as foreign 
laws j and in some degree at least the subject of proof." — Now, 
if the attorney general in June 1809, thought the facts uncer- 
tain, and the law a matter of controversy even after all the 
light afforded by the statements and publications, it is a little 
singular, that Mr. Jefferson should tell the world there was but 
one opinion in the cabinet of which this very attorney general 
was a member in the year 1807. It is true, the attorney general 
adds in this report that he adheres to his former opinion. But 
what was that opinion? Merely, according to his own expres- 
sion (Correspon. p. 8), a concurrence with Messrs. Derbigny 
and Gurley, provided the statement of facts furnished and offici- 
ally laid before him was correct" But it is evident from the parts 
of the report I have just quoted, that he considers the law of 
France among those facts, since after two years consideration 
of the subject, he treats it as a foreign law, and calls for further 

• Now Duplantier. See plate No. § 



33 

proof of its provisions. He makes no vain pretence of being 
deeply versed in a foreign system of laws, to which his studies 
had not been directed. Fortunate would it have been for me, 
and honourable to the country, if others had rendered equal 
justice to their own ability to decide. 

Mr. Jefferson, however, had no doubts, and his council, he 
says, were unanimous. On this co-operation of the council, I 
shall only make this observation: that in all my inquiries, in all 
my correspondence on this subject, it was never hinted at; nor 
had I the slightest suspicion of the fact, until I saw it asserted 
in the publication before me. The member of that council who 
told me that the order was given in the execution of a personal 
duty devolved upon the president, in which he had not partici- 
pated; that influential member of the cabinet, as well as others 
implicated in this charge of unanimity, owe it to themselves to 
deny the imputation. To me it is of little moment with whom- 
soever the measure originated, or whoever sanctioned it. I 
am prepared to shew, that it is illegal, unconstitutional and 
oppressive. 

All who have written on this subject in opposition to my 
claim, have acknowledged that by the laws of Spain, alluvions 
belong to the proprietors of the adjacent lands. It was necessa- 
ry therefore to abandon this point, or to find out some system 
which would vest property of this description in the sovereign 
power. 

The inaccurate expressions of some French jurists, and the 
grasping provisions of some French edicts, together with the 
circumstance of this province having once been under the do- 
minion of France, pointed out the jurisprudence of that country, 
and the laws of France were resorted to; with what success, 
may be determined by those who will take the trouble of refer- 
ing to the former discussions of this subject, particularly to 
the learned arguments of Mr. Duponceau, in two publications, 
which still remain without refutation. 

Having repelled all the skirmishing attacks which have 
hitherto impeded our progress, we at length approach the 
body of Mr. Jefferson's defence. It consists of the following 
points: 

E 



&4 

I. That alluvions of navigable rivers, by the law of France, 
belong to the king, and that those of the Mississippi have been 
transferred, with the other sovereign rights, to the United States. 

II. That the right of alluvion accrues only to rural, not to 
urban possessions. 

III. That the property in question is not an alluvion, but part 
of the bed of the river, which belongs to the sovereign. 

IV. That the use I made of the property was dangerous to 
the safety of the city of New Orleans, and an infringement on 
the public right to navigate the river; that my works were a 
nuisance, and that the president had a right to abate it. 

In discussing these points, I feel an embarrassment from the 
reflection, that almost every thing I shall say has been antici- 
pated, either in my own publications, or those of the learned 
counsellor and excellent friend, whose disinterested zeal has 
advocated my cause; and I cannot but admire the patient perse- 
verance with which Mr. Jefferson consents to transcribe the oft 
repeated authorities, to rally the broken sophisms, and once 
more array in his service the ten times refuted arguments, 
which, at different periods, have been .worn out in his defence. 
I will not, however, be outdone in the contest. I will revive the 
charge, as often as he shall choose to repeat the defence; nor will 
I cease to expose his oppression to the public, until I have an 
opportunity of arraigning him before another tribunal. 

I. Let us begin then with the first ground of defence, that 
alluvions of navigable rivers* by the laws of France, belong to 
the king, and that those of the Mississippi have been transferred 
with the other rights of sovereignty, to the United States. 

The Roman law, Mr. J.' acknowledges, (p. 36) gave alluvions 
to the adjacent proprietors, as wellas the sand-bars, shoals, islands, 
and even the bed of the river, when deserted; but the established 
laxvs of France, he contends, differed in all these particulars; and, 
as usual, Pothier is brought forward to bear the burthen of the 
contest. He is the only author of any reputation in France, who 
advances this doctrine; for Guyot, Ferriere, Denizart, and the 
author of the Title Jurisprudence, in the Encyclopedia, who are 
quoted by Mr. J. support, as I shall shew most expressly, the 
right of the adjacent proprietors. If Pothier is to be understood 
in the sense in which he is quoted, (which I must confess is the 
most obvious meaning of the passage) he is then contradicted 



35 

by the venerable sages of French jurisprudence who preceded 
him, and is followed by no one writer of note. This is so ex- 
traordinary a circumstance, that I sought, by a reference to the 
context, to shew that he was guilty of an inaccuracy of expres- 
sion, rather than an error in principle.* But if my attempt to 

* On this passage of Pothier, I made the following observations in my Exa- 
initiation, pages 19 and 20: " The only remaining - authority is that of Pothier. I 
" confess that the part cited, would lead the reader to suppose that this 
" writer meant to decide the question in all cases of navigable rivers; but 
" a closer attention will perhaps discover an inaccuracy of expression, or an 
"error, unavoidable, in some instances, even by the most correct writer, 
" whose attention is turned to so many points as are embraced by the valua- 
" ble work of Pothier." 

" I apprehend that what is laid down here as a general proposition, appli- 
" cable to all navigable rivers in France, is true as to those only, (and this 
** may be the case perhaps with the greater number) Where the grants have 
" not been bounded by the river, but by a fixed front boundary. I believe so, 
" because if the doctrine of Pothier were understood in the unqualified sense 
" in which it is quoted, the other writers whom I shall cite, and who all, without 
" exception, give a contrary opinion, would at least notice that of so celebrated 
" a writer, if they supposed it differed from theirs on so important a point. 

" I am also inclined to this solution from the passage which follows, in the 
" 160th article, where he gives the reason why, by the Roman law, the alluvion 
" belonged to the adjoining proprietors." 

"It was (says he) by a kind of right of accession, that, according to the 
" Roman law, the riparious proprietors had each one in his own right, the 
"property of the islands which were formed in the river, and even in its bed, 
" when the river abandoned it to take another course." 

" The inheritances of these proprietors having towards the river an unlimit- 
"ed extent, and having no other bounds but the river, and which comprehended 
" even the shores, and all which was not occupied by the river; the bed, which had 
"been covered, when it ceased to occupy it, was deemed to have made a part 
"of those inheritances, and to be an accession to them. It was the same thing 
** with respect to the islands which were formed in the river; these islands 
" being nothing else but a part of the bed of the river, which it had ceased to 
** occupy." 

" By the French laws, the navigable rivers belong to the king; the islands 
" which are formed within, as well as the bed when it is abandoned to take a 
"new course, belong to the king; the proprietors of inheritances on the bank, 
" cannot at all pretend to it, unless they shew titles of concession from the king?' 

" From these citations I think it appears, that Pothier makes the right of 
"alluvion to depend on the fact of the concession or grant being bounded by 
"the river, since he gives the existence of such boundary as a reason why, 
" under the Roman law, the proprietor was entitled to the alluvion, and de- 
" clares that unless he has a similar concession, he is not entitled to it by the 
" French law. I have endeavoured, I know not with what success, to reconcile 
" Pothier with the other French writers, some prior and others subsequent 
"to his work: every one of whom,at least alltbat I have been able to consult. 



36 

reconcile him to the body of the law be unsuccessful, we must 
not, with Mr. Jefferson, make the law bend to his authority. 
Let us examine the other writers who are relied on; they are 
Guyot, Denizart, Ferriere and the Encyclopedia. It would 
have been but candid in Mr. Jefferson, when he cited Guyot, 
to have told his reader that the same author, whose doctrine, 
under the word island, he quotes, had, under the word alluvion, 
the one now in question, expressly declared, that the " disposi- 
tions of the Roman law were observed in France, except on the 
rivers Doux and la Fere." The whole passage is quoted in my Ex- 
amination, (p. 21). Mr. J. therefore would have had some better 
title to the character of a fair disputant, had he adverted to it. 

Ferriere and Denizart, on whom he also relies, say no more, 
even in the passages cited, than that augmentations, formed sud- 
denly and all at once, belong to the king; a position I am not 
interested in denving, and which I had transcribed with the rest 
of the article, which Mr. J. for good reasons, has not chosen to 
quote. Denizart is as follows: 

Denizart: title Alluvion. Vol. \,page 74. 

" I. L'alluvion est un accroissement qui se fait insensible- 
** ment, et peu a peu, sur les rivages de la mer, des fleuves et des 
" rivieres, par les terres que l'eau y apporte." 

" II. Lorsque par alluvion, un heritage se trouve insensible- 
" ment accru, et plus etendu qu'il ne l'etait, l'accroissement ap- 
"partient au proprietaire, et celui dont l'heritage est diminue 
"par cette voie, ne peut pas revendiquer ce qui s'en manque." 

" Cette maxime, qui est puisee dans le droit Romain, A lieu 
M dans toute la TRANCE, excepte en Franche comte. On y 
** dit communement au contraire que la riviere du Doux n'ote ni 
" ne bailie. Ainsi Valluvion n'est point dans le cours de cette 
" riviere, un moyen d'acquerir. Voyez la remarque de Du- 
" moulin." 

" II faut encore excepterla riviere de Fere, qui, suivant une 
" coutume locale d'Auvergne, n'ote ni ne bailie, c'est a dire, que 
u lorsqu'elle prend d'anciennes possessions par inondation ou 
" autrement, petit a petit, de$a ou dela l'eau, il est permis a celui 
" qui perd de suivre sa possession et de la revendiquer." 

" agree in the doctrine, that the proprietors of land bounded by a river, 
" whether navigable or not, is entitled to all the increase that may be produced 
"by alluvion; but that attirissement, a word peculiar to the French jurispru- 
dence, belongs, in navigable rivers, to the king." 



37 

" III. L'augmentation qui arrive dans un heritage par allu- 
" Dion* est une seule et me trie chose avec l'heritage accru: 
" (fundus fundo accrescit, sicut portio portionii) il en prend toutes 
" les qualites accidentelles de fief et de roture, de propre et 
"d'acquet; II est sujet aux memes charges, fussent-elles d'usu- 
" fruit et de substitution." 

" IV. II n'en est pas de meme d'un accroissement subit, 
" occasionne par un debordement, ou par quelqu 1 autre cas for- 
" tuit: la portion de ce terrain pourrait en ce cas, etre reclamee 
" par le proprietaire. Voyez la coutume de Bar." 

"V. La maxime est d'aillturs affermie par I'arret rendu au 
" rapport de Mr. l'abbe de Vienne, en la quatrieme chambre 
" des enquetes, le 15 Avril, 1744, entre le Marquis de Bouzols 
" et Mr. de Chamflour, conseiller en la cour des aides de Cler- 
" mont, rapporte par Guyot, Traite des Fiefs, tome 6, chapitre 
" des Rivieres, page 673, n. 10; et par arret du Mercredi 22 Fe- 
" vrier, 1769, rendu en la grande chambre, conformement aux 
" conclusions de Mr. Seguier, avocat general, la meme chose 
" a ete jugee. La sentence qui avoit ordonne une visite des 
"lieuxa ete infirmee, et il a etc ordonne que par enquete re- 
" spective, il serait verifie si le changement du cours de l'eau, 
" sur le rivage de la mer, avoit ete subit ou insensible. Mr. 
" Lochard plaidait pour le chapitre de Lucon, et Mr. Caillou 
" pour le sieur de Champagne." 

" VI. Bourjon pretend que ce qui^ccroit par alluvion appar- 
" tient au seigneur haut justicier; mais ni son opinion, ni l'avis 
" des auteurs qu' il cite, ne sont suivis dans l'usage. Voyez la cou- 
** tume de Normandie, art. 195, 1'article 268 de celle d' Auxerre, 
u 1'article 154, de celle de Sens, et celle de Metz, tit. 12. art. 28. 

" VII. Les atterissements formes subitement dans la mer ou 
u dans les fleuves et rivieres navigables, appartiennent au Roi, 
" par le seul droit de sa souverainete. Voyez la declaration du 
" mois d'Avril 1683, et Mr. Le Bret, de la souverainete Liv. 2. 
" Chap. 16; et les edits des mois de Decembre 1693, et Fev- 
" rier 1710, concernant les atterissements, isles et islots. On 
'* trouve ces deux edits dans le Recueil de Neron, Tome 2." 

Ferriere is not less express. " The disposition of this sec- 
" tion," (that of the Roman law, Inst. Lib. 2, tit. 1, s. 20, de 
alluvione) " is observed among us." — And the whole passage 
from the Encyclopedia, of which a shred is given by Mr. J. 
reads thus: 



3& 

" Alluvion is an increase of the ground, which takes place by 
" slow degrees, on the shores of the sea, on the borders of 
"fleuves and rivers ; occasioned by the earth which the water 
" conveys to it, and which becomes so consolidated with the 
'* contiguous land, that it forms a whole with it — an identity. 
" The name of alluvion is also given to those lands which are 
" slowly and imperceptibly left uncovered by the water. 

" The Roman law places alluvions in the number of the means 
" of acquiring according to the law of nations, as being a kind 
" of accession; that augmentation being operated in a slow and 
" imperceptible manner, remains to the inheritance to which it 
*. < is found united. 

" The portion which is thus added insensibly, is not consi- 
" dered as a new land, it is a part of the old which becomes pos- 
" sessed of the same qualities, and it belongs to the same mas- 
" ter, in the same manner as the growth of a tree forms part of 
" the tree, and is the property of the proprietor of the tree. 
" That right of increase by alluvion is grounded in the maxim 
" of law, which bestows the profits and the advantages of a 
" thing, to him who is exposed to suffer its damages and its 
" losses. 

"The regulations of the Roman law on alluvion, 
" are generally followed in France. The coutumes of 
" Metz, Sens, and Auxerre, have on that subject precise regu- 
" lations, which form their common law. 

" But the province of Franche comte must be excepted, where 
" it is established as a maxim, that the river Doux neither gives 
"nor takes away; — that is to say, that the person whose inheri- 
" tance is diminished by the inundation of the river, may in- 
" demnify himself by possessing himself of the land which it 
"has abandoned. 

" The same thing takes place on the inheritances bordering 
"on the river Fere, in Auvergne, where the local coutume esta- 
" blishes the same right. 

" The alluvions which the sea produces on the lands which it 
"bathes, also belong as a right of increase, to the proprietors of 
" those inheritances, who may also make levees or dykes, to 
" secure them. 

" We must observe, however, that to acquire by right of al- 
"luvion, two conditions are necessary. 



39 

a First.— That the increase should be made slowly and im 
" perceptibly, in such a manner that it cannot be discovered in 
" what time each part of the alluvion has been formed to, and 
" consolidated with the inheritance. 

" Second. — That the inheritance by virtue of which the right 
u of acquiring by alluvion is claimed, be contiguous to the river, 
M in such a manner that the bed on which it flows, seems as it 
" were, to be a part of the same inheritance; — for, in case it 
" did not bound exactly to the river, and it was bounded by a 
" causeway or by a road, the parts left uncovered by the river 
" between its bed and the road, cannot belong to the proprietor 
" of the inheritance situated on the other side of the road. Those 
" lands belong to the king in navigable rivers, and to the feudal 
" lords, in those that are not so." 

Thus we see, that out of five writers on the French law, 
cited by the late president, four directly oppose his doctrine, 
and are made to favour it only by that ingenious and novel 
device which makes the scriptures declare " there is no God." 

After laying before the public, for the second or third time, 
the whole of these texts, of which partial extracts are given by 
the gentleman with whom I contend, I pause to ask whether a 
perusal of the whole does not give a different idea from that 
conveyed by the extract? — Whether it does not give an oppo- 
site idea? — Whether the whole text was not under his eyes 
when he wrote, and had not been successfully quoted before, to 
answer and explain the passages he cites? — An affirmative an- 
swer (and no other can be given to these queries) must involve 
Mr. Jefferson in the reproach of endeavouring to deceive the 
public, by a partial quotation of authorities, a conduct which 
would not be tolerated by any tribunal, still less by that of the 
public, to which he has appealed. 

Having shewn that all the elementary writers, save one, 
which have been relied on, prove the reverse of the doctrine 
for which they were introduced, let us now examine the au- 
thority which we are told is to " put aside all further question, 
as to the law of France on this subject." — The edict of Louis 
the XlVth, of the 13th of December, 1693. 

It is, however, a little extraordinary, that during the century 
which has elapsed since this decisive decree, but one writer of 
any note in the whole kingdom can be found, whose doubts 



40 

have been " put aside" by its provisions, and that not one tribu- 
nal has decided in conformity with the construction now put 
upon it. This edict has been so often pushed forward to bear 
the brunt of the controversy, that I am tired of referring to it, 
and shewing that neither its declaratory nor enacting clauses 
warrant the conclusion drawn from it. 

The first rule in construing statutes, is, to examine how the 
law stood prior to their being made. 

The only sources from which we can draw a knowledge of 
this point, are statutory laws, elementary writers, or decisions 
of courts. 

Positive law is not pretended to exist, or the edict would 
have been produced instead of the one which is referred to. 

The only elementary writers cited, who wrote prior to this 
edict, declare, that alluvions belong to the adjacent proprietor, 
though islands and increments formed in the beds of rivers, 
by sudden changes, belong to the king, and not a single decision 
either before or since has been discovered vesting them in the 
sovereign. We may fairly, then, take it for granted, tha; at the 
time of the rendering that edict, the fundamental law of France 
gave alluvions to the proprietors of the land on which they were 
formed. 

Now, let us examine whether this edict either could change 
or does purport to change this law. 

We have seen, that as the law stood before the edict, islands 
and increments formed in the bed of a river, detached from 
the shore, belonged to the king; but, that alluvions formed im- 
perceptibly on the bank, belonged to the private proprietor. — 
Now, if the edict intended to make so serious a change in the 
laws of the country, it would have been done by express terms, 
and in the enacting part of the statute. But the statute in ques- 
tion, in its preamble or declaratory part, asserts, that the king 
has a right of property on (sur) (which is improperly translated 
in, by Mr. Jefferson) on all navigable rivers and jteuves (a term 
meaning a navigable river falling into the sea, for which we 
have no equivalent) in the kingdom, and consequently to all the 
islands, mills, ferries, sudden accumulations, (atterissements)*' 

* " Nous appelons atterissement le canal et le lit que la riviere a tout dhin 
coup quitte." 

We call atterissement the channel and bed which the river hath all at once 
quitted. 2 Ferriere on the Inst. 45. 



41 

and increments formed by the said fieuves and rivers. — That 
this right being incontestably established by the laws of the state, 
as a necessary consequence and dependence of his sovereignty, 
the kings his predecessors and himself, had ordered researches 
to be made as to the isles and increments formed therein. 

In all this, I see nothing but an assertion which I am not in- 
terested to deny, that the laws of the land gave islands and 
atterissements to the crown, when formed in the channel of 
navigable rivers. But it is said, p. 33, that the word accroisse- 
ment (increment) is also used — that this is a generic term, of 
which alluvion is a species, and that therefore the edict com- 
prehends it. 

But where there are two species of increment, to the one of 
which the king has a right, and to the other he has none, would 
it be a fair construction to say that the use of the generic term 
would imply an assertion of his right to the whole? 

Suppose, for instance, a king of France in some edict relative 
to the royal residence were to recite that he and the kings his 
predecessors had an undoubted right to the Palais in the city 
of Paris, could this be fairly construed into a confiscation of all 
the palaces of the nobility and clergy in the city? — or would it 
not be restricted by the rules of law as well as common sense, 
to that species of property which really belonged to the king? — 
and as the distinction must have been known to the framer of 
this edict, had he designed to have changed the law, or even to 
have declared, that every species of this kind of property be- 
longed to him, he would have found some term to have ex- 
pressed the idea, and would not have left any cavil to his sub- 
jects on the occasion; but that he did not intend it, is apparent 
not only from wha; I have said, but from the recital that in con- 
sequence of this right of property, he and his predecessors had 
ordered researches to be made, as to the isles and increments 
formed therein (the rivers), that is by atterissement in the bed, 
not by alluvion on the bank; — but it may be asked, why employ 
the word accroissement when he had already used the word at- 
terissement, if they are synonymous? — but they are not. There 
are accroissements which are neither atterissements nor allu- 
vions,— and it is to this species that the ordinance refers, as we 
learn from the most respectable authority. — " II y a done (says 

F 



42 

*< Ferriere, p. 52.) de la difference entre l'alluvion et Paccroisse- 
" ment fait par la violence des eaux." — " Par notre droit Fran- 
" £ais, quand ces accroissements qui se sont faits tout- a-coup 
" sont considerables, on pretend qu'ils doivent appartenir au 
" roi, comme une espece d'epave; ce qui parait conforme aux 
" ordonnances royaux, par lesquelles les isles et atterissements 
" qui se forment dans les grands fleuves, appartiennent au roi."«— 
" u There is then a difference between an alluvion and an ac- 
" croissement made by the violence of the waters." — " By our 
" French law, when these accroissements which have been made 
" suddenly are considerable, it is pretended that they ought to 
" belong to the king as a kind of waif; which appears to be con- 
"jbrmable to the royal ordinances by which isles and atterisse- 
" ments which are formed in navigable rivers belong to the 
"king." 

Thus every word in the preamble is satisfied without con- 
struing the edict so as to make a change in the laws of the 
kingdom, and an inroad upon private rights. Let us see whe- 
ther the enacting part of the edict goes further. 

For these reasons (says the sovereign), we enact — what?— 
That all alluvions shall hereafter belong to the crown? — that the 
occupants shall immediately abandon them? — No; but simply, 
that all the holders, proprietors or possessors of isles, islots, 
accumulations, increments, alluvions, rights of fishery, &c. on 
navigable rivers, shall be maintained in their possession, on 
paying one year's revenue, if they have a title prior to the year 
1566, or two years' revenue, if they have no title or possession 
prior to that period. 

The same observation may be made as to the body of the 
edict, which was used with respect to the preamble. There are 
alluvions to which the king had a right, and there are others to 
which he had none. Of the first kind were those which were 
formed upon his property; of the latter those which were an- 
nexed to that of his subjects. — The islands in navigable rivers 
were his; islands more frequently are enlarged by alluvion 
than lands on the bank, because the current always forms an 
eddy at the lower end of an island. This alluvion belonged to 
the king, because it was annexed to, formed a part of his pro- 
perty. When, therefore, he was confirming the title to the pos- 
sessor of the island, he did it but by halves, if he did not give 



43 

him the alluvion also, and he accordingly does give it. Here 
we have the true reason why this word is used in the enacting 
clause,* but omitted in the preamble. He could not in the pre- 
amble, declare that he had a right to all alluvions on navigable 
rivers, because it would not have been consistent with truth;— 
but he used it in the enacting clause, because it was necessary 
to assure property of that description to which he had a right, 
upon the very principles for which I contend, viz. — That allu- 
vions belong to those upon whose lands they are formed. — It is 
then only by a very forced construction of this edict, that we 
can with Mr. J. think it so decisive as to put aside all doubt, 
or that it can form even an argument in his favour. 

If, however, it should be conceded that the king intended to 
rob his subjects of property they before had, and to vest it in 
the crown, it would be a void act; for though the sovereigns of 
France had much greater and higher prerogatives than those in 
other more favoured countries, — yet the people did not hold 
their property solely at the will of the monarch; there were fun- 
damental laws to protect it, which their kings swore to observe; 

* In my Examination, p. 10, I say on this subject, 

"Because the word alluvion is introduced in the list of property that is 
confirmed to the proprietors, I do not perceive that he arrogates to himself a 
right to the alluvions which shall be formed upon the land thus bounded on 
the river; and I can account for the word bein;; introduced into this part of 
the edict, by supposing that it was the intent of the king to confirm to posses- 
sors of islands, not only the original soil of those islands, but also the increase 
which they had gained or might thereafter guin by alluvion. This is a very 
natural construction, not only from the omission of the word in the declaratory 
part of the edict, but because islands are more frequently increased by allu- 
vions than the banks of the rivers themselves; and thus the words of the edict 
may be satisfied without making it at war with the fundamental laws of the 
kingdom." This reasoning Mr. J. either does not deign to notice, or ceuld not 
answer, for it is passed over in silence. Having, when I wrote, no authority 
for my explanation, I should not have had the vanity to attribute his silence to 
the force of the argument while I thought it only mine; but I have since dis- 
covered, that it is supported by such high authority, that I am relieved from 
the mortification of supposing the argument was not answered, because it was 
beneath my opponent's notice. 

The parliament of Bordeaux, in a remonstrance to which I shall hereafter 
refer, speaking of this edict, says: " If the edicts of 1693 and 1710, to islands 
and islots have added the words alluvions and atterissements, we must under- 
stand by this, the alluvions and atterissements formed upon the islands and 
islots which belong to the public property, when they are in the channel ofthr 
river." 



44 

-—there were privileges and franchises which they were bound 
to respect. Every province had its code, which was secured by 
the several treaties which annexed them to the crown. For in- 
stance, by the treaty of the 12th of June 1451, by which 
Guienne was annexed to the crown, Charles the Vllth, stipu- 
lated as follows: — " Et fera le roi a l'entree de la dite ville de 
" Bordeaux, au jour dessus dit, s'il y est present, ou mon dit 
>' seigneur le comte de Dunois, pour lui, si le roi n'y peut etre, 
" le serment sur le livre et sur la croix, ainsi qu'il est accou- 
" tume, de tenir et maintenir les habitans d'icelle ville et du 
" pays, et chacun d'eux presents et absents qui demeureront ou 
" demeurer viendront en son obeissance, en leurs franchises, 
" privileges, libertes, statuts, loix, coutumes, establissements, 
" styles, observations et usances du pays de Bordeaux en Bor- 
" delois, de Bazas en Bazadois, et d'Agen en Agenois." 

" And the king on his entry into the said town of Bordeaux, 
"if he be personally present, or the said lord the count de 
" Dunois, on his behalf, if the king cannot be there, shall swear 
"on the book and the cross, in the usual manner, to keep and 
" maintain the inhabitants of the said city and country, and each 
" of them present and absent who shall reside or come to reside 
" under his allegiance, in their franchises, privileges, liberties, 
" statutes, laws, customs, establishments, forms of proceeding, 
" observances and usages, of the country of Bordeaux, in the 
" Bordelais, &c." 

Indeed it is difficult to imagine any country of which the fun- 
damental laws would permit the sovereign to take away private 
property without the pretext of necessity, or the allegation of 
crime. — In the most despotic countries of which we read, 
though life be not secured from the bow-string, nor property 
from arbitrary confiscation, yet neither the one nor the other is 
taken, except on the allegation either true or false of some 
crime; — and I doubt whether even in Turkey, the sovereign 
would venture to declare any species of private property, gene- 
rally vested in the crown; — certain it is, that he could not do so 
consistently with the fundamental laws of the empire, — for even 
there, there are such laws, though they may be frequently vio- 
lated with impunity. 

It will hardly be contended, that the edicts of the kings of 
France had more binding effect than the rescripts of the Roman 



45 

emperors; — yet we find there are bounds set to the authority ot 
the latter in matters of private right. "Cod. 1. 19. 7. Rescripta 
"contra jus elicita ab omnibus judicibus refutari prsecipimus."— 
" We command all our judges to disregard every rescript pro- 
" cured against law." — " lb. tit. 22. 1. 6. Omnis cujuscumque 
" majoris vel minoris administrationis universae nostra reipub- 
" licae monemus, ut nullum rescriptum, nullam pragmaticam 
" sanctioriem, nullam sacram adnotationem* quae generali juri 
" vel utilitati publicse adversa esse videatur, in disceptationem, 
" cujuslibet litigii patiantur proferri, sed generales sacras con- 
" stitutiones modis omnibus non dubitent observandas." — 

" We admonish all the judges both of the inferior and supe- 
rior jurisdictions of our republic, that they suffer no rescript, 
no pragmatic sanction, no sacred adnotation to be used as 
authority in any suit which are contrary to general law or the 
public utility." 

But the right of alluvion depends not on municipal, but on 
natural law. Quod per alluvionem agro nostro flumen adjicit, 
jure gentium] nobis adquiritur. D. 41. 1. 7, s. 1. Every provi- 
sion therefore destructive of private property held by virtue of 
this general law, seems to have been considered as void even 
under the imperial despotism of Rome; and if this edict really 
declares what Mr. Jefferson says it does, the utter disregard in 
which I shall shew it has been held in France, would be a strong 
argument that the same notions as to the power of the crown 
prevailed there. 

This edict, then, neither purports to change the law, nor if it 
did would it operate that effect. But after reading it what shall 
we say to the assertion p. 29. " By this edict, he, (Louis XIV.) 
declares the law of France " incontestably to be that alluvions 
belong to the king in all navigable rivers." The words I have 

* Pragmatica Sanctio was the decision of the prince by the advice of his 
council, and sacra adnotatio, was the Emperor's answer given in a short note at. 
the foot or in the margin of a petition or libel. 

f The words jus gentium, jus nature, naturalis ratio, are indifferently used 
in the Roman Jurisprudence to express the same idea. 

Ait imperator jus geutiu?n esse quod naturalis ratio inter omnes homines 
constituit. 

"Qiiamob causam et ipsam, quoque j>'ws natures passim appellatur et sequum, 
et bonum, et naturalis sequitas, et natura." Vinnius, Com. on the Inst. Lib. 1. 
Tit. 2. 



46 

written in Italics are marked by Mr. Jefferson with inverted 
commas, as a quotation from the edict itself. But the edict 
Contains no such sentence, and its different parts have been 
laid under contribution for words to form it. The words incon- 
testably belong are taken from the preamble where they are 
used in reference to atterissements and islands; — the word allu- 
vion is taken from the enacting clause, where, as we have seen, 
it was introduced in order to give what the king had a right to 
give; — and thus by transposing those disconnected words, bring- 
ing them together, and coupling them with each other, the legis- 
lator is made to declare what he did not declare and to assert 
what he had no right to assert. It is painful to be on the watch 
for these misrepresentations — it is irksome to detect them; — 
but what must we think of the cause that forces a man of high 
character to have recourse to them? 

Thus w r e have examined the whole evidence of the law of 
France which the president of the United States had at the time 
he acted, or has been able to procure since. It consists as we have 
seen of five partial quotations from writers, of whom certainly 
four and probably all speak a different language when fully ex- 
amined: and of one edict which I think has been proved not to 
contain the provisions attributed to it, and which could not, and 
most certainly has not produced any practical change in the 
tenure of this species of property; for to his authorities and his 
edict Mr. Jefferson has not and could not add a single decision 
conformably to his ideas of the law. Of two things then, one: 
either this act does not purport to declare or change the law in 
the manner he contends, or if it does, the act has been deemed 
void; for cases are not wanting under it. The object of this edict, 
though it neither was meant to claim, nor does claim alluvions, 
was yet clearly unjust and oppressive, since it forced those who 
for one hundred and twenty-three years had possessed the 
ferries, mills, atterissements, islands, &c, on navigable rivers 
under regular grants, to pay a year's revenue; and those who 
had later grants, the income of two years. — It was made at a 
time when the finances of the kingdom were in the most fright- 
ful disorder. The revocation of the Edict of Nantz had des- 
troyed the manufactures, the English and Dutch had annihilated 
the commerce of France, and long wars had exhausted her re- 
sources. About this time the royal plate was sent to the mint. 






47 

offices and titles of nobility were sold, the coin wa9 debased, 
every contrivance, just or unjust, was resorted to, for replenish- 
ing the empty coffers of the state; and it is not wonderful that 
among them we should find this attack on the occupants of 
islands and other royal rights on rivers; and if Mr. Jefferson's 
generic term " increment" had been designedly introduced with 
a view to claiming alluvial property also, it is astonishing that no 
cotemporaneous case should be mentioned in which that con- 
struction was put upon it. The successors of Louis the XIV., 
however, were not less extravagant and of course not less needy 
than himself. The ambiguity of this expression struck some of 
them as a proper engine of rapacity, and attempts were made 
to rob the riparious proprietors in different parts of the king- 
dom, of this lawful accession to their lands, but always with the 
same ill success; in every instance, and I shall enumerate many, 
the fiscal harpies were discomfited. The edict was declared not 
to extend to the case of alluvions, and the question was finally 
settled in France, by the decision of the famous case of Bor- 
deaux. 

Before I take my leave of this edict, it is very important to 
remark that unless it expressly changes the law of the kingdom, 
it cannot operate on this question; because Mr. J. (p. 25 in 
notes) acknowledges that Louisiana was governed by the custom 
of Paris, of which the Roman law formed a part; he acknow- 
ledges (p. 26) that the Roman law gives alluvions to the ripa- 
rious proprietors, but says that this was controlled by the 
ordinances. If then the ordinances do not expressly change the 
Roman law in this particular, its disposition as far as respects 
Louisiana must prevail. 

That the reader may have ample materials for drawing a fair 
conclusion from the arguments on this head, I shall proceed to 
state a succession of authorities and decisions, drawn from the 
French jurisprudence, which I think from their weight, number, 
and uniformity, must convince all those who are open to con- 
viction. 

To begin with the authorities: — 

Cujas* the Nestor of the French jurisprudence, expresses 
nimself thus: Alluvio — non est jus fisci aut principis ut ab eo 

* Sometimes called Cujachts 



48 

emi,vel dona peti possit quasi possessio vacans. Cujas, Paratit. 
Cod. L. 7. 41. Vol. 2. p. 259. 

" Alluvion is not a fiscal right or the property of the prince, so 
that it may be bought or given as a vacant possession." 

Id autem quod per alluvionem accrescit fundo nostro adeo 
nostrum fit, ut a fisco vindicari et vendi non possit, itaque ut non 
possit vendi a principe quasi possessio vacans et praeterea id 
singulariter constituitur in leg. 3. h. t. ut nihil fisco inferatur pro 
incremento alluvionis. Cujas, Com. in Cod. L. 4, tit. 41. 

" But that which is added to our land by alluvion becomes 
ours in such a manner that it cannot be claimed or sold by the 
treasury, nor can it be sold by the sovereign as a vacant posses- 
sion; and it is specially provided by the third law of this Title,that 
nothing accrues to the treasury for the lands created by alluvion." 

Boutheiller^ a counsellor (one of the judges) of the parlia- 
ment, who wrote in the fourteenth century, proves that as early 
as his time, this doctrine was established. 

11 Si la riviere accroit par son cours d'eau, elle accroit aussi au 
roi; si elle s'appetisse, l'accroissement est pour le seigneur ou 
proprietaire par la terre de qui elle passe." 

" If the river enlarges itself in its course, the encrease is for 
the king, if it grows narrower, the encrease belongs to the lord 
or proprietor, by whose lands it flows." 

Bacquet, who was the king's advocate in the treasury, and who 
was obliged officially to support the pretensions of the crown, in 
his Traite des Droits de Justice, Ch. 30, No. 8, says: " Si l'at- 
terissement fait par alluvion, n'est au dedans des fleuves publics 
et rivieres navigables, mais hors icelles, si incrementum alluvione 
factum non fit in alveo fluminis sed extra alveum, il appartiendra 
a celui a ^heritage duquel l'accroissement aura ete fait, et le 
dit accroissement n' appartiendra pas au Roi ni au seigneur haut 
justicier, lesquels ne pourront pretendre que droit de justice ou 
de censive s'il leur appartenoit." 

" If the atterissement made by alluvion is not within a public 
and navigable river, but without, if the increase made by alluvion 

* For this and some of the following- authorities, I am indebted to Messrs. 
De Liege, Mailhe and Berryer, counsellors of eminence at Paris, whose opi- 
nion is decisive, that the law of France as it stood at and before the period 
of the late revolution, was the same with the Roman law, on the subject of 
alluvions on the banks of rivers. 



49 

is not made in the channel of a river, but -without the channel^ it 
shall belong to him to whose freehold the increase shall have 
been attached, and the said augmentation shall not belong to 
the king nor to the lord high justiciary, who can only pretend to 
the droit of justice &? censive,* if those rights belong to them." 

Ferriere, in hifc commentaries on the code, Lib. 7, Tit. 41, 
draws the same distinction between atterissements formed in 
the middle of a river, which he says belong to the king, and at- 
tirissements made by alluvion out of the river's bed, which 
belong to adjacent proprietors. 

Salvaing, first president of the chamber of accounts in Dau- 
phiny, supports the same doctrine in his treatise sur Pusage 
des fiefs, Ch. 60, Vol. II. p. 67. 

Berthollet Dujferier, who wrote a treatise on the droits and 
dovxaines of the king, acknowledges the same position to be the 
law of France. Ch. 31. 

" Mais les accroissements faits hors les rivieres, appartiennent 
aux proprietaires des heritages les plus proches et non au roi, &c. 

Le Fevre de la Planche, advocate of the king in the chamber 
of the domaine, and who composed a treatise on the rights of 
the domaine printed in 1764, after having declared with other 
writers above cited, that the atterissements formed within the 
channel of a river belong to the king, adds: " Qu'il n'est pas de 
meme d'un amas insensible que la riviere entraine peu a peu, 
qui accroit a l'heritage contigu par forme d'alluvion suivant lc 
droit Romain auquel le nbtre est conforme. 

Larve, advocate in the parliament of Paris, in a work in- 
titled " Theorie des Matieres Feodales" adds his authority to 
the same position; his publication appeared in 1785. 

To these authorities add those of Denisart, Guyot the younger, 
Ferriere, the Encyclopedia, from all of whom I have given ex- 
tracts above, and we shall have a body of authority not surely 
to be shaken by the unsupported opinion of Pothier, who on this 
subject, contrary to his usual practice, cites neither authority nor 
decision. 

I will refer the reader however to Renusson, Traite des Pro- 
pres, p. 39. 

" It often happens that an inheritance which is bounded by a 
stream or navigable river, is augmeiated or diminished by the 

• Baronial Courts and quit-rents 

G 



50 

stream, which forsakes its anci. m bed and makes for itself ano- 
ther; this jugm<.-ntation or diminution is a profit or loss to him 
who has- rhc adjoining inheritance; the increase is an accessory 
which belongs of common right to the proprietors of the soil 
which is contiguous to it." 

Dumouli?!, on the ancient custom of Paris says: " The increase 
of alluvion is acquired to us in the same right by which the 
original soil belonged to us, nor is this increase considered as a 
new field, but as a part of the first." 

I shall close this long list of authorities with the respectable 
name of Domat; — he teaches us that u the proprietor of an estate 
acquires the possession of whatever may be added to it by na- 
ture, which augments the land and becomes as it were an 
accessory thereto; thus the insensible increase which may be 
gained by an estate joining to a river by the operation of the 
water, is an acquisition accruing to the proprietor of the estate." 
1 Dom. 268. 

In addition to this long series of well digested opinions coin- 
ciding with that which I support, I had in the first discussion of 
the subject, (Exa. p. 31 and 35) cited the preliminary dis- 
course of Portalis to the title in the new code which sanctions 
the same provisions as part of the law of France. I quoted from 
this discourse the assertion that the provisions of the new code 
were conformable to the ancient law of the kingdom as settleb 
at a period prior to the revolution, and that the contradictory 
opinions grew out of the feudal system. This is answered (Jeff. 
34) by saying: " And here Portalis' rhetorical flourish is cited 
with triumph, as declaring that this law terminates the great 
question of alluvion and decides it conformably to the Roman 
law; it is very true indeed, that it has terminated the question 
as to future cases, by changing the law &c, and had Louisiana 
been subject to France, the law would have been changed 
thenceforzvard) for Louisiana also." Whoever should read this 
passage without having seen those to which it purports to be a 
reply, must imagine that Mr. Duponceau and myself had ad- 
vanced the absurd proposition that the question was to be de- 
cided by the provisions of the Napoleon code. There is not 
much ingenuity, and there is less candor in making weak argu- 
ments for \ our adversary and then shewing your own strength 
by refuting them. Need I repeat that the articles of the new 



51 

code and Portalis's exposition of them were cited, not to shew 
that the law of France was changed, but that the new provisions 
were conformable to the old law; not to take advantage of a 
change, but to shew that there had been none; and to prove, by 
the declaration of one of the first lawyers of modern France, 
that the law was settled prior to the revolution, by a solemn de- 
cision* on the side of the question that I espouse. — This argu- 
ment pressed hard on the late president, and he gets rid of it by 
calling a plain sober opinion a " rhetorical flourish" and by in- 
venting for his adversaries a ridiculous argument which they 
never used. 

In the discussion to which I have been obliged more than 
once to refer, (Ex. p. 31) I expressed myself as follows: 

" A most persuasive, if not a conclusive argument, that the law 
of France is as I have stated, may be drawn from the following 
circumstances and opinions. When the first consul undertook 
the great task of giving a general svstem of jurisprudence to 
France, he caused his Digest or Projet de Ctde, to be prepared 
by the first lawyers in the country. This was printed, and a copy 
sent to every superior tribunal in the republic, for their consi- 
deration; and, after a proper period, it was returned with such 
remarks and amendments, as had occurred to the different 
judges, that the legislature might, prior to its final adoption, have 
the benefit of the best legal advice on its different provisions." 

"The articles in this Projet, relating to the subject under dis* 
cussion, are contained in the second section, second title of the 
second book, and are as follows: 

" 15. The collections of earth, (atterissements) and acces- 
sions which are annexed successively and imperceptibly to the 
land, bordering on a river or navigable stream, are called allu- 
vion. Alluvion belongs to the riparious proprietors, when it 
takes place on a river, whether it be navigable or capable of car- 
rying rafts or not; under the condition, in the first case, of leav- 
ing the path prescribed by the regulations." 

* I shall presently state at full length, the whole of this celebrated case, 
from the original printed documents, a set of which is in my possession, and 
another in that of Mr. Duponceau. I was not able to procure these docu- 
ments until a late period of this controversy; and therefore, in my former 
publications, I could only speak of this important decision in general terms, 
principally on the authority of M. Portalis. This has emboldened my adver- 
saries to treat that high authority with neglect, and style it a rhetorical fiffurish 
But now the facts shall speak for themselves. 



52 

" 16. The rule is the same with respect to the running water, 
which retires insensibly from one of its banks, and encroaches 
on the other; the proprietor of the shore which is left dry, shall 
benefit by the alluvion, and the proprietor of the opposite shore, 
shall not be permitted to reclaim the land which he has lost." 

" If," I continued, " this part of the projet had made any 
change in the ancient laws of the country, some of the learned 
men to whom it was submitted, would have taken notice of the 
novelty, with marks either of censure or approbation; but we find 
them all either passing over the articles as declaratory of the old 
law, or else expressly acknowledging them as such, and stigma- 
tizing the doctrine now contended for by Mr. Derbigny, as an 
oppressive, and ineffectual attempt to pervert the laws of the 
kingdom." 

"To begin with the tribunal of Paris: they set out with this 
general observation on the part of the code containing the pro- 
visions. " The rules proposed," (they say) " on the subject, 
are in general conformable to what has always been prac- 
tised, and gives occasion to but verv few observations," and 
among those few are none on the subject of alluvion." 

" The tribunals of Nancy, Nimes, Orleans, Riom, Liege, 
Metz, Montpellier, Agen, Aix, Grenoble, Poitiers, Rennes 
and others, pass over these provisions as matters of course, or 
recommend a slight alteration, to prevent disputes between the 
proprietors of lakes and the adjoining land." 

"The tribunal of Rouen has these strong expressions, speak- 
ing of the nineteenth article of the Projet de Code, which de- 
clares islands in the middle of navigable rivers to belong to the 
nation; they say: 

" The Roman law gave to the adjoining proprietors the 
islands which were formed in navigable rivers; a disposition 
which appears more equitable than this article of the Code, and 
more worthy of a great nation, whose true interest is not 
to acquire property to the injury of individuals." 

" The edicts and declarations of the former kings, which 
claimed for the domain the islands of navigable rivers and 
fleuves, (primary rivers) were mere fiscal laws; these laws 
were founded on the false pretext that the islands were an 
appendage of the river, which they considered as belonging to 
the king. But, 



53 

" 1. The river itself is not a national domain, but a thing of 
which the public have the use; it belongs to the nation not in 
full property, but as an appendage of its sovereignty." 

" 2. The islands are not appendages to the waters of the 
river, but to the bed of the river; the right of individuals to 
which is acknowledged when the river abandons." 

" 3. An island cannot be formed without increasing the width 
of the river at the expense of the adjoining land; and the da- 
mages to which the proprietors of these lands are exposed, 
should entitle them to the islands, as an indemnity for the risks 
and losses they incur." 

" The principle which we propose, would not at all invade 
the public right to the islands which the nation possesses, or 
for which they have positive titles; but it would tranquillize 
those individuals, who, for ages, have possessed islands in the 
rivers as the true owners, and whom the agents of the domain 
have always vexed without having ever succeeded in de- 
spoiling THEM 05 THEIR ESTATES." 

Thus, in the publication above referred to, I stated the opi- 
nions of the different tribunals of France, when consulted on 
the very question before us, and the correctness of my state- 
ment is not denied. And yet, (who would believe it?) Mr. 
Jefferson is pleased to dismiss this powerful mass of autho- 
rities, with the unfounded assertion, that they are silent or, 
the subject of alluvions. (See Jeff. p. 35.) u The tribunal of 
Paris," says he, " is quoted with an acknowledgment that they 
do not make a single observation on the subject.'''' A more extra- 
ordinary attempt to mislead, I have seldom witnessed. I am 
made to acknowledge, that the tribunal of Paris does not make 
a single observation on the subject, when the quotation I give 
from their opinion declares, " that the rules proposed on the 
subject," (what rules? why those in the Projet de Code, among 
others, giving alluvions to the adjacent proprietor) " are in gene- 
ral conformable to what has always been practised, and 
give occasion to but very few observations." Here then, I think, 
is not only an observation, but a strong expression of opinion 
that the new law was conformable to the old, or, at least, to what 
had always been practised under it; and to shew that they did not 
consider the proposed rules, on the subject of alluvion, as an inno- 
vation on what had before alxvays been practised. I admit that in 
the few other observations they make, there are none on the suV* 



54 

jectof alluvion; yet from the very ingenious mode in which the 
assertion of my wily adversary is made, every one who reads his 
reply will imagine, that I had fully acknowledged, that the tribu- 
nal of Paris had made no observation whatever on the subject in 
question, although I quote an expression of their opinion in the 
strongest terms. On the same passage he asserts, and afterwards 
repeats, u that neither the word alluvion nor the idea is to be 
found in any of the quotations? How can this repeated, this 
solemn assertion be reconciled with the quotation from the tri- 
bunal of Paris, when speaking of the rules proposed on the 
subject of alluvion they say, that they are conformable to what 
has always been practised? How can any man assert that the 
idea of alluvion is not to be found in any of the quotations? 
How can he assert it, in the face of the second reason, given 
by the tribunal of Rouen, that " islands are not appendages to 
the waters of the river, but to the bed; the right of individuals 
to which, is acknowledged when the river abandons it.'''' Now 
if the title of the adjoining proprietor to the whole bed of the 
river is acknowledged, when it is abandoned by the water, does 
it not follow a fortiori, when a portion of it is abandoned in the 
case of alluvion, that the title is equally incontestable: The idea 
then of private right to alluvion, is presented in the whole of 
this quotation, and expressed in the most pointed manner, since 
the public right in the stronger case even of islands and accre- 
tions in the bed of the river is denied. 

My reasoning, it is said, cannot be characterized respectfully. 
It may probably be weak and inconclusive; but I trust it does 
not deserve those epithets which can alone designate the at- 
tempts made to misrepresent it. 

Having thus given the opinions of the most celebrated French 
jurists, both ancient and modern, and added to them the senti- 
ments of those legislators, who, in making new laws, declare 
what the old were, I proceed to fulfil the residue of my promise, 
by shewing a series of decisions on this head, all of them in 
direct contravention of those principles, which it is pretended 
were established by the edict of 1693; all of them denying the 
royal right to alluvions, and enforcing that of the adjacent 
proprietor. 

Th first, is the case mentioned by Denisart, and reported 
by G - , adjudged on the 15th of April 1774, between the 
marquis de Bouzols and M. de Chamflour, in one of the 



55 

sections or chambers of the parliament of Paris, denominated 
the fourth chamber of Inquests, (des Enquetes.) 

The second case is also mentioned by Denisart, as having 
been determined on the 22d of February, 1769, between the 
chapter of Lucon and M. Champagne. 

These two cases turn chiefly on the distinctions between 
augmentations made slowly by alluvion, and those which are 
created on a sudden, and decide that the first belong to the 
adjacent proprietor.* 

The third was- decided in the parliament of Paris, the 18th of 
March, 1 765. The marquis of Langeron owned a fief, to which 
was attached the right of haute justice, upon the Loire, by vir- 
tue of which he claimed all the alluvions on that river, as being 
attached to his domaint; and he cited as a decisive authority the 
edict of 1693. His pretensions however were disallowed, and 
the land, formed by the alluvion of the river, was adjudged to 
the nuns of Marcigny, who claimed it as the riparious proprie- 
tors. This case is reported by Larve, in his Theorie des Matie- 
res Feodales, which I have already cited. 

Here, then, is one decision, of the highest judicial authority in 
the kingdom, rendered more than seventy years after the edict 
of Louis XIV had, as is asserted, put aside all doubts as to 
the general law of France; rendered on a full consideration of 
that edict, and directly contrary to that doctrine, which, it is 
pretended, was thereby established. What answer can be given 
to the irresistible argument drawn from this decision? Perhaps 
the same given to the decision in the case of the parliament of 
Bordeaux, (p. 34) " that it proves only that the Roman law of 
alluvion, was the law of the generality of Bordeaux, not that it 
was the lav/ of all France." If so, let me respectfully ask the 
learned author to turn to the 24th page of his valuable work, 
and tell the world how he can reconcile the existence of the 
Roman law of alluvion at Bordeaux, with his assertion of the 
paramount authority of the edicts, if those edicts did, as he says, 
put aside all further question as to the law of France on the same 
subject. 

See to what a dilemma he has reduced himself in the perti- 
nacious defence of a bad cause? He acknowledges (p. 25) that 
the Roman law formed part of the custom of Paris, and was 

* See Denisart's statement of these two cases, above, p. 2,7. 



56 

transferred with it to Louisiana. He acknowledges (p. 26) that 
by the Roman law, alluvion belongs to the adjacent proprietor; 
but he says (p. 28 and 30) that the edict of Louis XIV being 
paramount, and prior to the charter of Louisiana, changed the 
law. Now if this edict changed the custom of Paris, why did 
it not change the custom of Bordeaux? Either therefore the 
answer to the Bordeaux decision is a bad one, or the argument 
from the paramount effect of the edicts is good for nothing. 

To that Bordeaux case I now return, and shall shew that the 
terms of its decision, preclude even the wretched, inconsistent 
answer that has been given to it. It has finally settled all ques- 
tion on the subject, and is the last I shall cite. These were its 
circumstances: 

On the 5th of July, 1781, an arret or order of the king in 
council was passed, of which the preamble declared, " that all or 
the greater part of the isles, (islots) accumulations, (atterisse- 
ments) alluvions and deposits (relais) in the rivers Gironde and 
Dordogne, and on the coast of Medoc, from the point of La- 
grange to Soulac, which forms an immense extent of ground in 
the space of twenty-two leagues, appearing to be usurped, there 
was an absolute necessity, for the interest of his majesty, to 
know the extent &c." Therefore the arret directed the grand 
master of the waters and forests of Guienne, " to proceed to the 
verification -and search of those isles, alluvions and deposits, 
formed in the rivers Gironde and Dordogne, and on the coast 
of Medoc, from the point of Lagrange to Soulac;" and it 
directed surveys and plans to be made of those lands. 

As soon as this arret was made known, and attempted to be 
executed at Bordeaux, the king's attorney general, whose duty 
it would have been to enforce the execution of the edict, had it 
been legal, came into the court of parliament, and communicated 
its contents; accompanying it with a motion, (requisitoire) of 
which the following is an extract: " The lands of Medoc, which 
the arret calls usurpations on the domaine of the king, are the 
shores (les bords ou le rivage) of the Gironde. They are morasses, 
of which the waters run into the river, or which are covered by 
those of the river in high tides; the first have been enlarged or 
extended by the sand, which the flood has carried in, by detach- 
ing it from other places on the same side of Medoc, so that 
what some have lost, others have gained* this sand is consoK- 



57 

dated, and the industry of the inhabitants has opposed dykes to 
the efforts of this great river. The second have been drained 
more than a hundred and fifty years, and this draining was 
made by virtue of arrets of the council, who were impressed 
with the necessity of preserving this valuable property to the 
inhabitants." 

" The Roman law and the ordinances of the kingdom, unite 
(pursues the king's attorney general) to secure to indivi- 
duals the property of the shores; (rivages) proprietas riparum 
illorum est quorum prcediis hcerent; qua de causa, arbores quoque 
in eisdem natx, eorumdem aunt. 4< Ins. de Rer. Divis. §. Ripa- 
rum 4. The seventh article of the twenty-eighth Title of the 
Ordinance of August 1669, on the subject of waters and 
forests, enacts, " That the proprietors of estates bounded by 
navigable rivers, shall leave along the shore (bord) twenty-four 
feet at least in width, for a royal road and tow-path for horses, 
&?c. This article is only a repetition of the third article of 
the ordinance of Francis I. of May, 1520; the consequence is 
easily drawn. The shores of rivers may then be the property 
of individuals, charged with the servitude which is imposed for 
the public service. In a word, the property of the shores is vest- 
ed in those who are proprietors of the adjacent lands; because, 
as Vinnius says, on the section Riparum, that which is not occu- 
pied by the river, is supposed to make a part of the neighbour- 
ing land. " The imperceptible increase," says Ferriere, on the 
§ Pra-terea, 10 Inst, de Rer Divis. which the law calls incremen- 
tum latens, and which the river detaches, little by little, from one 
estate, and adds to another, " belongs, by accession, to the pro- 
prietor of the estate to which it is joined; because, fundus j undo 
accrescit, sicut portio portioni" The attorney general then pro- 
ceeds to cite Demoulin and Lefevre de la Planche, whom I 
have quoted above, with the observation, " that the same max- 
ims are found in authors the most favourable to the rights of 
the domaine." 

" After considering principles so certain as these," (he adds) 
" it is difficult to imagine how the administrators of the domaine, 
could have imposed on the good faith of the council, so as to 
procure the arret," &c. and after a variety of observations n the 
same style, he concludes by proposing an humble remon^rance 
to the king; and in the mean time a stay of the execution of the 

H 



58 

arret, until the pleasure of the king should be more clearly ex- 
pressed. This measure was adopted by the parliament, "for the 
reasons" (as they say) " set forth in the motio?i" (requisitoire) 
" of the attorney general." They order a remonstrance to the 
king, and an injunction against the execution of his arret. 

On the 31st of October, 1783, the king in council, not satis- 
fied with the conduct of the parliament of Bordeaux, in op- 
posing the execution of the arret of 1781, by a new arret orders 
the execution of the first, and revokes the sentence of the parlia- 
ment. On the service of this new order, the same attorney 
general presents a new requisitoire to that high court, containing 
very strong and spirited remarks on the conduct of the king's 
council. After describing, in lively colours, the dismay of the 
alluvial propri tors, at the illegal operation of the king's arret, 
he says: " they have still hopes; — they know that they shall find 
in the parliament generous defenders, who will never cease to 
assert in their favor the rights which secure their property; they 
know, and it re-animates them, that the magistrates will employ 
the authority which is entrusted to them, to arrest the violence 
of the instruments of the fisc, and oppose their usurpations." 

I must interrupt my extract; it affords too painful a contrast 
between the minister of an absolute monarch, and the represen- 
tatives, the magistrates of a free people. In France, the victim 
of oppression found a defender in the creature of the monarch 
who wronged him; he was reminded that a French parliament 
would never cease to defend his rights, and that the authority 
of the magistrate would shield him from violence. He was told 
this, and it was not a vain boast. Royalty itself respected his 
possessions; it bowed to the majesty of the law; and after an in- 
effectual struggle, gave up the contest.. While here the free citi- 
zen, of a free and enlightened republic, is despoiled of the same 
species of property, claimed under colour of the same laws, by 
military violence; and he finds no parliament to remonstrate, no 
magistrate to defend him; — he is denied even a hearing; and 
the first officer of a republic succeeding to the claims of a. French 
monarch, is permitted to enforce them in a manner, and to an 
extent, which the king could never dare, in the plenitude of his 
power, to do. 

The attorney general proceeds in the same eloquent and man- 
ly style, to discuss the rights of the crown, to assert those of the 



59 

judiciary; and declares that, " although deeply impressed with 
respect for the laws which guard the national domaine, and with 
a sense of his duty to enforce them, he yet feels that there is 
another duty attached to his office; a duty of a superior kind: 
that of taking care that the name of the sovereign should not be 
used to oppress the subject, or deprive him of his inheritani e." 
He closes by proposing another remonstrance, and a second in- 
junction to the grand master of the waters and forests, not to 
execute the royal decree, ''until the king should explain himself, 
in a legal manner, with respect to the rights claimed by the ad- 
ministrators of the domaine to the shores of navigable rivers, 
and the accretions, alluvions and atterissements which may be 
formed there." This is accordingly decreed by the court; the 
injunction issues, and it is obeyed. No officer of the crown, in 
an absolute monarchy, is found hardy enough to disregard the 
judgment of a competent court; no regiments of militia are 
ordered out to enforce the mandate of the sovereign, in oppo- 
sition to it. The regular troops at Bordeaux, are not ordered 
to be in readiness to massacre those who might be inclined to 
support the dignity of the laws. The remonstrance is presented 
to the sovereign, and in the mean time, his reiterated mandate 
remains unexecuted. 

The king and council however still persevere, and on the 16th 
of October 1785, revoke the last arret of the parliament, and 
direct a special agent to go to Bordeaux, and see the registering 
and publication of the king's order executed in his presence. — 
The parliament, however, does not abandon the cause, or forget 
the dignity of their functions; they protest against every thing 
done in consequence of the arbitrary order of the crown, and 
issue another arret declaring the transcription of the king's 
mandate, " null, illegal, and incapable of producing any effect" 
ordering another injunction against its execution, directing an 
appeal to the nation by a publication of all the proceedings, 
and finally another remonstrance to the crown. This last paper 
is dated 30th June, 1786; it is a learned and eloquent assertion 
of the rights of riparious proprietors in opposition to the sove- 
reign's claim of alluvions on the navigable rivers of France. \ 

Finding that the parliament of Bordeaux was not either to be 
deterred from the performance of its duty by the ft ar of royal 
displeasure, or dragooned into submission, and that they them- 



60 

selves were engaged in an illegal and unpopular claim, the coun- 
sellors of the crown were now only solicitous to obtain an 
honourable retreat. The public discussion of the subject had 
shewn so conclusively that neither the edicts nor the general law 
of France, gave this species of property to the king, that their 
only resource was to declare that he had never claimed it. — Ac- 
cordingly, by letters patent, dated the 28th July 1786,reciting all 
the proceedings which I have detailed, the king declares that his 
arrets have been misunderstood, that they were intended only to 
have the property surveyed, but not to take it; he directs, indeed 
byway of salvo for his dignity, that all the arrets of the parliament 
shall be annulled, and that the surveys ordered by him, shall be 
made; but concludes with these words, which I should imagine 
would dissipate all doubts relative to these royal rights. — "We 
order therefore the grand master of the waters and forests of 
Guienne, to proceed with the proces verbal and surveys directed 
by our said letters patent: provided always that it shall 

NOT BE INFERRED FROM THENCE, THAT THE ALLUVIONS, AC- 
CRETIONS AND DEPOSITS FORMED ON THE BANKS OF THE SAID 
RIVERS OR OF ANY NAVIGABLE RIVER, CAN BELONG TO ANY 
BUT THE PROPRIETORS OF THE SOIL ADJACENT TO THE SHORES 
OF SAID RIVERS; AND TO US, WHEN THE SHORES OF THE SAID 
RIVERS ARE ADJACENT TO THE SOIL OF LANDS BELONGING TO 

our domaine.* Nor do we intend, under pretext of searching 
for and ascertaining what lands belong to the domaine, to dis- 
turb the proprietors in the possession and enjoyment of the fiefs, 
lands, lordships, and other property which has been anciently 
held by them or those under whom they claim, and which does 
not appear to be part of our domaine; and we order moreover, 

* *' Sans ne"anmoins que I'on en puisse induire que les alluvions, atterisse- 
lt ments et relais formes sur les bords des dites rivieres, si d'aucune riviere 
" navigable, puissent appartenir a d'autres qu'aux proprittaire* des fonds ad- 
" jacens d la rive desdites rivieres, et d nous lorsque la rive desdites rivieres sera 
" adjacente d des fonds de terre faisant par tie de notre domaine." It is to be 
here particularly observed, tbat the king does not speak merely of the allu- 
vions of the Gironde and Dordogne. which were the particular subject in 
controversy, nor of those rivers only which flow through the district of Bor- 
deaux, but. he expressly says, that he does not claim the alluvions formed 
on the banks of the said rivers, nor those of any other navigable 
river. What becomes, now, of Mr. Jefferson's learned distinction between 
the custom of Bordeaux and that of Paris? 



61 

that these letters patent which we have ordered to be transcribed 
in our presence on your minutes, shall be read, published and 
affixed, wherever it shall be needful." 

After this formal recognition of the principles I contend for, 
by the highest judicial and legislative authority in the kingdom; 
after this solemn disavowal of the regal rights set up by my ad- 
versary; — after the publicity given to the decision, at a time 
when, if I mistake not, Mr. Jefferson filled a high station in the 
capital of France, it is a little extraordinary to hear him assert 
so positively that since the edict of 1693, no doubt could exist 
as to the laws of France on the subject of alluvion, and that 
those laws vested them in the king. The pertinacity with which 
this opinion is adhered to, is the more extraordinary as the 
position was abandoned by two of his fellow labourers, out of 
three in the same cause, and by the two who being educated in 
France, were, without any disparagement to the acknowledged 
merit and talents of the third, better qualified to determine a 
question of French law, than any gentleman whose professional 
education was entirely American. The solicitude of our author 
to obtain the support of his two colleagues on this important 
point is truly ridiculous. — In a laboured note (p. 37) he tries 
to coax Mr. Moreau out of his opinion, or to persuade the 
world that " he is not decided" in pronouncing it, and his ex- 
tracts now shew me, why this memoire of Mr. Moreau* was 
never suffered to meet my unhallowed eye. The secretary oi" 
state once (I believe inadvertently) mentioned its existence, 
but on my expressing a desire to see it, changed the conversa- 
tion, and I found there were reasons why it was deemed im- 
proper to communicate its contents. 

The decided manner in which his other advocate, Mr. 
Thierry, had opposed this favourite doctrine, gave Mr. J. no 

* In this note the author states that the distinction made by Mr. Moreau 
between alluvions in the bed of the river and on its banks, " /* new in this 
cause, having never been claimed by the plaintiff or his counsel, or suggested by any 
other who has treated the question." This is one of those gratuitous assertions 
with which the book abounds; in my first publication on the subject, (Ex. p. 
18) the same argument will be found, and the same construction of the edict 
enlarged on, although I did not know at that time that it was the identical 
construction which had been adopted and relied on by the attorney general 
and parliament of Bordeaux, in the celebrated controversy above mentioned, 
and which was finally submitted to by the king of France and his council. 



62 

hope of soothing or converting him; and his argument on this 
point, most assuredly created no desire to enter the list with so 
formidable an adversary. 

The president of the United States, therefore, skulks out of 
the ranks to carry on his irregular attacks, and then " ejoins 
the standard" of his leader (p. 38) with a compliment which he 
hopes will disarm his wrath and secure forgiveness for his de- 
sertion. The argument as to the feudal nature of the royal claim 
to alluvion becomes nugatory, after having shewn so conclu- 
sively that, whatever its origin, it does not exist in France; but 
that I may leave nothing unanswered, let us see how our author 
treats this subject. 

I had stated that the lands in question were granted in franc 
aleu or allodial tenure, in which the feudal lord had none of those 
rights which attached to the other tenures in Europe, and that 
therefore even if the kings had the right to alluvions in France 
they had it not in Louisiana, where the tenure was different. I 
cited Portalis for the feudal origin of the royal claims, but did 
not enter into any discussion of the point, because I thought the 
general law of France to be (as I think it has been demon- 
strated) extremely explicit. To this it is replied that it is palpa- 
bly erroneous to say that the feudal system was never introduced 
into Louisiana. But whether that position be erroneous or not, 
would seem to be of no consequence, since it is not the one now 
under discussion. The position is, that the lands in question 
were allodial, and that no feudal rights attached to that tenure. 
The mention however of feudal rights, fired a philosophic train 
of ideas too splendid not to be pursued. We are led, therefore, 
by this ignis fatuus through the morasses of ancient Germany, 
over the wilds of Tartary and the wizard heights of Wales, 
through Persia and China, over the Indus and the Niger, across 
the Alps and the Andes, into a discussion of the origin of pro- 
perty, and the first establishment of all governments from the 
St. Lawrence to the Ganges; and by the aid of our good friends 
the Edinburgh Reviewers, we find out that in Europe, Asia, 
Africa and America, including Wales and the Upper Creeks, all 
lands in every nation which do not belong to individuals, belong 
to the public* All this may be very amusing, and is certainly 

* Jeffers. p. 31. 



63 

very well calculated to shew that the author has studied the 
Edinburgh Review, but it as surely can throw no light on the 
present discussion. 

It may, I think, reasonably be disputed that the sovereign 
possessed the land before it was parcelled out among the indi- 
viduals of a nation, and the learned researches of the Reviewers 
certainly do not prove that he did. They prove only what I 
have stated, that whatever is not owned by individuals, is the 
property of the nation, and I think, were it necessary, strong rea- 
sons might be adduced to shew that a separate property in lands 
as well as moveables may be reasonably supposed to have ex- 
isted before the establishment of any civil government, and that 
civil government was resorted to, to secure and to perpetuate 
those rights, but did not create them. I am accused in a very 
academical phrase, of putting the cart before the horse., and as- 
serting that the authority of the nation flows from the feudal 
system, when I ought to say, it seems, that the feudal system 
flows from the authority of the nation. Now it unfortunately 
happens, that I have said neither the one thing nor the other. I 
simply observed on the authority of Portalis, that the royal 
claim to the beds of rivers was in France a part of the feudal 
system, and that my lands being held in franc aleu, were not 
governed by that system, leaving the question which way it 
flowed, whether from the system to the sovereign, or from the 
sovereign to the system, to be determined by those who have 
leisure to instruct us by their philosophic researches. All this 
however is idle discussion; the question is not whether vacant 
lands not granted by the nation to an individual remain in the 
sovereign, but whether alluvions belong to the proprietor of the 
land to which they accrue. Now this depends on the nature of 
the grant, says Mr. Jefferson. " Rome which was not feudal, 
and Spain and England which were, have granted them large- 
ly." — The whole of this is founded in error; the laws of Spain 
are not feudal; the whole body of the Roman law, including 
the law of alluvion, was transcribed and introduced into that 
kingdom by Alfonso the Learned in the 13th century, and 
many of the fundamental principles of the English law, are an- 
terior to the introduction of feuds into that country. What credit 
we are to give to the assertion "that France has not granted them 
at all" we have just seen; but, however that may be, though par- 



64 

ticular governments may have derogated from the natural rights 
of individuals, the one in question depends not on " the nature of 
the grant from the sovereign" at least, not in the sense in which 
our author means it, which is, that whenever alluvions are not 
expressly granted, they are reserved, and are to be considered 
as vacant lands, which the sovereign may keep for himself, or 
grant to whom he pleases; for even admitting that the sovereign 
has the right to grant all vacant lands, yet this species of pro- 
perty, which is formed by gradual annexation to land before 
granted is never vacant, and of course cannot become the subject 
of the sovereign's right. This results from the nature of its crea- 
tion; — it is imperceptible; — at what moment then can the sove- 
reign right attach? It is incorporated with the private soil, — how 
then can it be separated? Its formation is carried on in secret, it 
is latent, — how then can it be discovered during the process? 
We find all these characteristics given in the definitions so fre- 
quently quoted. 

Est enim alluvio incrementum latens. Per alluvionem autem 
id videtur adjici, quod ita paulathn adjicitur, ut intelligi non 
possit, quantum quoquo temporis momento adjiciatur. — " Allu- 
vion is a latent increase. That appears to be added by alluvion 
which is added so gradually that we cannot know how great is 
the increase of each moment of time." II. Ins. Tit. 1. s. 20. 

For these reasons we find the imperial law expressly refer- 
ring the right not to any grant, but to the law of nations; which 
as we shall see is here used not in the modern sense of the code 
which binds nations in their intercourse with each other, but as 
synonimous to natural right. Prseterea quod per alluvionem agro 
tuo Rumen adjecit, jure gentium tibi adquiritur. " Moreover, 
whatever is added to thy field by alluvion, becomes thine by 
the law of nations." II. Ins. ibid. 

Quod vero naturalis ratio inter omnes homines constituit id 
apud omnes gentes peraeque custoditur: vocatur que jus gentium 
quase quo jure omnes gentes utantur. "What natural reason 
hath prescribed to all men, is observed among almost every 
people, and is called the law of nations, as being the law ob- 
served among them all." I. Inst. Tit. 2. s. 1. 

And in the commentary of Vinnius on this text, the same 
idea is enforced. " Ait imperator jus gentium esse quod natu- 
ralis ratio inter omnes homines constituit- -unde sequitur jus hoc 



65 

non ex legibus aut institutes populorum estimandum esse sed 
ex eo quod justum esse dictat ipsa ratio naturalis id est insita 
animis hominum notitia de honesto et turpi justo et injusto 
quam ob causam et ipsam quoque jus natures passim appellatur 
et aequum et bonum et naturalis sequitas et natura. " The em- 
peror says, the law of nations is that which natural reason has 
prescribed to all men. Hence it follows that this law is not to 
be tested by the laws or institutes of particular nations, but by 
that which natural reason itself dictates, that is the notions of 
virtue and vice, of justice and injustice, which are innate in the 
mind of man. Wherefore it is called indifferently the law of 
nature, what is just and right, natural' equity and nature" 
Vinn. in Ins. p. 15. 

Here we find the nature of that code defined, to which we are 
referred for the origin of this right, and from thence it may be 
inferred that even admitting the doubtful principle that all 
landed property was first vested in the nation, and by it par- 
celled out among individuals, yet all alluvions accruing to lands 
after they were granted, would not be the property of the sove- 
reign, but of his grantee. — Mr. Jefferson himself acknowledges, 
page 42, that alluvion is an accessory, an appendage, an appur- 
tenance, cites the maxim that an accessory follows the nature of 
its principal, and says that the equity of the right of alluvion 
was founded on the maxim " qui sentit onus, sentire debet et 
commodum" that as the owner was exposed to loss from the 
river, he ought to be indemnified by the increase of alluvion. 
Is it not extraordinary that with such materials in his hands 
he could not form the obvious conclusion, that after the grant 
was once made by the sovereign, the accessory which was sub- 
sequently attached to it belonged according to the principles 
of natural right to the grantee?— but, instead of this, he be- 
wilders himself and his readers in a useless search into the 
origin of property lands; a research utterly nugatory, because 
whether the title came first from the sovereign or not, the mo- 
ment the land on the bank became private property, the subse- 
quent alluvion was an accessory, which he acknowledges must 
follow its principal, by the rules of natural equity — and there- 
fore must also be vested in the proprietor of the land, not in the 
nation. 

I 



66 

II. We next come to a position of which Mr. j. seems pecu 
liarly enamoured, viz. " i hat 'he right of alluvion accrues only 
to rural, not to ur'^an possessions, and therefore that had the bat- 
ture been an alluvion, and governed by the Roman instead of the 
French law, the conversion of the plantation of Gravier into a 
suburb made it public property" These words, I should sup- 
pose, mean, that although Gravier's plantation had been in- 
creased by alluvion to a very considerable extent, prior to his 
laying it out into a suburb, the very act of dividing it into lots, 
vested in the public all that part which had been created by 
alluvion; an assertion which he leaves unsupported by either 
argument or proof; and which modifies his position, in a man- 
ner that renders it entirely inapplicable to the present case. 
This position is, u that the Roman law gave alluvion only to the 
rural proprietor of the bank; urban possessions being consi- 
dered as prcedia limitata." Now, admit this wild assertion to 
be true: does it follow that the alluvion created before the 
ground became a city belongs to the public? On the contrary, 
does not Mr. J. himself allow that it is an accessory, and that 
tru iccessory must follow the principal? If this be so, the ques- 
tion is at an end: because the ground on which my house stood, 
and from which I was driven, was formed long before the ex- 
istence of the suburb. 

But the position is not only inapplicable, but unfounded. Let 
us examine how it is supported. The Institute in defining this 
species of property, or rather this mode of acquiring it, says, 
" What the river has added agro tuo, by alluvion, is thine;'' 
the Digest uses the same expression. Now ager in Latin and 
agros in Greek, mean a field. Land in the city is called area, a 
lot. Therefore you must shew, says the conclusive and most 
learned reasoner, that your alluvion accrued to afield, or you are 
not entitled to it: because there are no fields in a city. I must an- 
swer this argument, or it will be supposed that this very learned 
page has silenced me; and many an honest citizen who under- 
stands no Greek, but u honors the sight" as much as Boniface 
did " the sound of it" will uppose some unanswerable argu- 
ment lies hid in the cramp characters that adorn it. Seriously, 
then, let me tell my verv learned adversary, first, that ager in 
Latin means not only afeld, but the generic term land, and that 
too, situate in a village, and to take away all cavil, in a city. 



67 

Forma censuali cavetur ut agri sic in censum referantur: 
Nomt n fundi cujusque, et in qua civitate et quo pago si f . Dig. 
50, tit. 15. lex 4. 1. " In the tax list let it be observed, that 
the lands (agri) be thus reported: the name of each estate, and 
in what city or in what village it is situate." 

" Is vero qui agram in alia civitate habet, in ea civitate profi- 
teri debet in qua ager est." Dig. 50. 15. 4. 2. " But he who hath 
lands (agrurri) in another city, should be credited in the city in 
which his land (ager) is situate." 

Here we see that ager is used for landed estate, either in a 
village or a city; and that there may be no doubts raised as to 
the signification of the term civitas, let us see what is its defini- 
tion. — " Civitatis appellatione non veniunt suburbia, sed id so- 
lum quod murorum ambitu terminatur." — Calvin's Lexicon, 
verbo civitas. " Suburbs are not comprehended in the term city, 
but that space only which is contained within the walls." Again, 
we find the term ager used in the same sense, in the 50th Dig. 
tit. 8. 1. 9, § 2. — " Item rescripserunt agros reipublicse retrahere 
curatorem civitatis debere," &c. Here the administrator of the 
city, is directed to reclaim the lands {agros) of the public; a 
duty that would have b* fn devolved on the prceses provincice, if 
the property had not been situate within the city. 

Secondly, I may be permitted to remark that the Roman law, 
in speaking of alluvions, does not confine itself to those which 
are annexed to a field, {ager) but indifferently uses the term 
fundus. Take a few out of many examples: " Id altuvionis jure 
ei quaeritur, cujus fundo accrescit." Cod. 7. 41—1. Sed et si 
post emptionem fundo aliquid per alluvionem accesserit, ad 
emptoris commodum pertinet. 3 Ins. tit. 24. § 3. 

" Ergo si insula nata z.&cr&v?r\t fundo raeo, et inferiorem par- 
tem fundi vendidero," &c .Dig. 41. tit. 1. 1. 30. 

" Altiusftndutn habebat secundum vkim publicam," &c. &c. — 
lb. 1. 38. Here, and in numerous other instances, the expression 
is fundus; a term of the most general import, fully answering 
that of land in the English law, and expressly including town- 
lots, torun-houses, and every other species of real property, 
either in town or country, as we find by the following: 

" Fundus est omnc quidquid solo tenetur — ager est si species 
fundi ad usum hominis comparatur." — Dig. lib. 50. 16. 115. 



68 

" Fundus, (land) is every thing which is fixed to the soil— -it is 
ager if prepared for the use of man." 

"Fundus: Id omne significat quidquid solo seu terra tenetur, 
seu ager, seu villa seu praedium seu sedificium, seu stabulum, 
seu area, seu insula sit." — Calvini Lexicon Juridicum, verbo 
ager. " Fundus signifies every thing that is fixed to the soil or 
the earth, whether it be a field, or a country seat, or a tavern, or 
any real property, (prcedium) or a building, or a toxvn-lot, (area) 
or a town-house, (insula)." 

That fundus relates to urban as well as rural property, may 
be also shewn from the following passage: 

" Quaerebatur, si quis a Sicilia servos Romam mitteretfundi in- 
struendi causa utrum pro his hominibus portorium dare deberet, 
nee ne?" — Dig. 50. 16. 203. Here the general term fundus, is 
clearly used for an estate in a city; for the question supposes 
the slaves to be sent from Sicily to Rome* for the purpose of 
furnishing the fundus (the estate) there. Again: "Fundi appella- 
tione omne cedifcium et omnis ager continetur." — Dig. 50. 16. 
211. 

I might multiply these quotations to an extent that would be 
fatiguing to the reader; these, certainly, are sufficient to shew, 
that both ager and fundus are general expressions, which em- 
brace every species of estate; but to make the law on this sub- 
ject still more explicit, I may add that the Roman jurisprudence 
not only speaks of alluvions as being incident to the ager and 
the fundus, but the prtedium also; thus using every expression 
to shew, that it was not confined to any one species of real pro- 
perty, to the exclusion of the others. 

" Inter eos qui secundum unam ripam prcedia habent, insula in 
flumine nata non pro indiviso communis fit, sed regionibus quo- 
que divisis." — Dig. 41. 1. 29. 

In the Institutes, lib. 2. tit. 1, § 22: " Insula in flumine nata, 
(quod frequenter accidit si quidem mediam partem fluminis 
tenet) communis est eorum, qui ab utraque parte fluminis prcedia 
possident, pro modo (scilicet) latitudinis cuj usque fundi" 

And in the Digest 41. 1. 7, we have an example of the 
three expressions, ager, fundus and prcedium, indifferently 
used: 

"§1. Praeterea quod per alluvionem agro nostro flumen ad- 
jicit, jure gentium nobis adquiritur. — 



69 

§ 2. Quod si vis fluminis partem aliquam ex tuo prcedio de- 
traxerit et meo prcedio attulerit, palam est tuam permanere. 
Plane si longiore tempore fundo meo hxserit, arboresque quas 
secum traxerit in meum fundum radices egerint, ex eo tempore 
videtur meo fundo ;idquisita esse." 

The word prcedium is still more generally used, in the most 
comprehensive sense, than either ager or fundus, and is de- 
rived, according to Varro, from per hceredium, or, as we should 
term it, an estate of inheritance. After the definitions of ager 
and fundus, the 115th law of the Dig. de verb, signif. gives us 
the signification of prcedium as follows: 

" Prcedium utriusque suprascriptse generale nomen est." 
" Prcedium is the general name for both the preceding terms." 
But I think in the reasoning to which Mr. Jefferson refers 
me, and which he makes his own, it is said that there are prce- 
dia urbana and pnvdia rustica, city estates and country estates, 
and that I shew nothing, unless I shew that the right of alluvion 
accrues to the former by name; but surely when I shew that it 
accrues generally to estates, to land, to the soil: when I shew 
that every term used to express an interest in real estate, is em- 
ployed on the occasion, I shew enough to throw the burthen of 
any exception upon my adversary. I might say to him: I have 
shewn that this right accrues to the ager, to the fundus and the 
prcedium; and I have shewn, by the most approved definitions, 
that all these terms include lands in the citv~ as well as the 
country. If the law however does not apply to city proper- 
ty, do you shew it. There is, sir, I know, the prcedium urbanum 
and the prcedium rusticum; but permit me, most learned civi- 
lian, to suggest to you, that there is also the servus urbanus 
and the servus rusticus, and that you might as well tell me, 
when I cited any one of the thousand laws on the subject of 
town generally, that it did not apply to the town slave, because 
he was not particularly named; — nay, you might make the same 
exception to the country slave, and thus shew, that what ap- 
plied to all generally, could not affect any in particular. And, if 
it were not too presuming, I might add, you have made a slight 
mistake, in supposing that prcedia urbana were always situate in 
a city; the name, sir, has misled you.* Before you write books 

* Urbana prxdia omnia adificia accipimu9, non solum ea qnce sunt in oppidis, 
sed, et si forte stabula sunt vel alia meritoria in villis et vicis vel si prxtori 



70 

on the civil law; and above all, bt fore you rely so much on your 
Icnon ledsre of it as to strip a citizen of his property, it would be 
well to study and digest its principles. Its maxims are, — u in eo 
quod plus est semper inest et minus;" " In toto et pars contine- 
tur;" " semper specialia generalibus insunt." — Ponder on these, 
learned sir, and do not insist that a bequest of horses, generally, 
does not include those of the testator, because they happen to 
be white horses,* black horses, or even pied horses. 

But if you will not be content, without a positive law, that 
the right of alluvion accrues to property in the city as well as 
the country, I believe, sir, I must gratify you. If it had not been, 
however, for the bad habit you have fallen into, of being learn- 
ed at the expense of others, of repeating quotations without 
looking at the text, you would have saved me this trouble, and 
yourself the mortification of repeating a triumphant challenge 
to produce an authority which you would then have seen was 
under my hand. 

You have repeated, after those who went before you, the 
qi it ion, ** In agris limitatis jus alluvionis locum non habere 
constat;" had you read the rest of tht same law, you would have 
found the very authority you challenge now to produce: " Et 
Trtbatius ait, agrum qui hostibus devictis ea conditione conces- 
sum sit ut in civitatem veniret, habere alluvionem;" " and 
Trebatius says, that land conquered from the enemy, and grant- 
ed on condition that it shall be included in a city, is entitled to 
the right of alluvion." 

I repeat that I need not have produced this authority, and 
that nothing but my desire to oblige you, sir, has induced me to 
submit it to your inspection; but after this I hope we shall not 
have a third repetition of the challenge. — Such might be my 
address to my erudite adversary, if I were not restrained by 
respt-ct for the conviction he expresses of the soundness of the 
principles I am forced thus reluctantly to attack. 

voluptati tantum deservientia; quia urbanum prxdium non locus facit sed ma- 
teria; proinde hartos quoque, si qui sunt in xdificiis constituti, dicendum es>t 
urbanorum appellatione contineri. — Calvini Lexicon, verbo PrjEdium. 

* See the learned case of Stradling v. Stiles. — Serjeant Catlyne's argu- 
ment is. I think, rather better than the late president's; but perhaps I may 
not do justice to the latter, for like Swift's unfortunate reporter, "Jeofui 
disturb en mon place." 



71 

The common law of England is next resorted to; and I am 
again challenged to produce a decision under that law, where 
the right of alluvion to city property has been allowed. Having 
shewn one under the law which governs the country in which 
the lands lie, I have, I think, done enough; but I am resolved 
that none of the wretched shifts resorted to shall go unexposed, 
and that the president of the United States shall not have it to 
say, that his conduct would have been legal had the land been 
in England, and he, king of that country. 

First, then, I answer this appeal to the common, as I did that 
to the civil law, by giving the general rule, and calling on my 
adversary to shew the exception, if it exist. Blackstone, speak- 
ing of this species of property, even in the strong case of allu- 
vions of the sea, says, " And as to lands gained from the sea, 
either by alluvion, by the washing up of sand and earth, so as in 
time to make terra jirma, or by dereliction 8cc: in these cases 
the law is held to be, that if this gain be by little and little, by- 
small and imperceptible degrees, it shall go to the owner of the 
land adjoining."* The same law (he says, a little below) applies 
to a river. Now as land, in the English law, means every spe- 
cies of soil, whether urban or rural, as a lot of ground does not 
cease to be land, although it be situate in a city, I should sup- 
pose this general expression would be sufficient to shew, that 
the king would have no right to the property in question, were 
it situate in England. But to this Mr. Jefferson gives a most 
conclusive answtr: " In towns, the whole bank and beach being 
necessary for public use, the private right of alluvion would be 
inadmissible."! How does it happen then, that in every city in 
the United States, the shores and wharves are private property, 
except in the cases where the legislature or the king, may have 
granted them to the corporations, in which cases they possess 
and use them as individuals? If they were "necessary" for public 
use, they could never be private property; if the private right of 
alluvion were " inadmissible" it would never exist. But neces- 
sary, in Mr. Jefferson's vocabulary means useful, and the public, 
means those who administer its affairs. Whatever therefore is 
useful to promote the popularity of the president, is necessary 

• 2 Black. Com. 261. f Jeff. p. 40 



72 

to the public, and it is in this sense only that his allegation can 
be reconciled to truth. The question of the right of alluvion to 
town-lots, has arisen and been decided in the United States. 
The lands were situate in Newburyport, and the case is report- 
ed in Tyng's Massachusetts Reports, vol. 3, p. 353. Adams v. 
Frothingham. It was decided according to the common law of 
England, not by virtue of any state regulation; and the judgment 
affirmed the right of alluvion to the proprietor of a town-lot. 

But the whole body of American judges are proscribed; their 
decisions are no rule for Mr. Jefferson. " Special circumstances 
(he says) have prevented attention in America either to the 
law or the breach of it." What those circumstances are which 
would make learned and upright judges neglect the law, or en- 
lightened magistrates disregard the interests of the public, he 
has not deigned to explain. But be it so, American decisions 
shall pass for nothing; there are no bounds to my complaisance 
for my adversary; every thing shall be yielded to him; titles in 
Louisiana shall be decided by the- laws of England, -not as those 
laws are understood in the United States, as the\ are expounded 
by the ignorant men who preside in their courts, but as they 
flow from the fountain head in good old England itself, and not 
even there as they are given to us by such inaccurate writers as 
Blackstone or Coke, who deal in general principles, but we will 
look for decisions, and those relating not only to land, but to 
land in a city, nay, more, to land in a port; and to bring the case 
still nearer home, to a beach which is covered not once every six 
months, but twice every day, with the water not of a river but of 
the sea, and on which ships, not Kentucky boats, ride at anchor. 
Thus far I shall be enabled to go, but I candidly confess I can 
get no farther, and if it should be objected to me that my pro- 
perty is chiefly loam and vegetable soil, and that in the case I 
cite the soil was sea sand, that my alluvion was produced by 
fresh water, and the English one by salt, or any other distinc- 
tion equally important should be raised, I confess that I must 
give up the cause in despair, and avow myself vanquished by 
the superior resources of my opponent. Let us however do what 
we can. 

I live in a place where there are very few English law books; 
my means of information therefore are but scanty. I cannot pro- 



73 

cure the book from which Mr. Jefferson takes his Scotch case,* 
and I must therefore take it precisely as he gives it, which (he 
will pardon me) since the Spanish translation (mentioned above, 
p. 1 1.), I am rather loth to do — but even in that statement I think 
enough may be discovered to prove the truth of my position. 
Smart was the proprietor of a lot in the borough of Dundee, 
which was bounded per fuxum maris or by high-water mark, 
but the whole soil below high-water mark, together with the 
franchise, had been granted to the corporation of Dundee. The 
king, who owned the whole, had given that part above high- 
water mark to Smart, and all below it including the river on both 
sides, to the corporation. The lands gained by the recess then 
belonged to the corporation, not to Smart, because the space be- 
tween high and low-water mark belonged to them. Smart was not 
the riparian proprietor, what was added by alluvion was not to his 
soil, but to that of the corporation, and this would have taken 
place were the lands situated in or out of a town. If, instead of 
granting them to the corporation, the king had granted the lands 
between high and low-water mark to an individual, that indi- 
vidual would have shut out Smart, and reaped the benefit of the 
alluvion; — for let it be remembered that by the laws of Eng- 
land the king is, prima facie, the owner of all land between high 
and low-water mark, both on the sea coast and the arms of 
the sea. " The shore is that ground that is between the ordi- 
nary high-water and low-water mark, this doth prima facie 
and of common right belong to the king, both in the shore of 
the sea and the shore of the arms of the sea." Hargrave's 
Law Tracts, p. 12. — Although the same author adds that such 
shore may and commonly is parcel of the manor adjacent, and 
so may belong to a subject. — Now in the case relied on by Mr. 
Jefferson, Smart's grant was bounded by high-water mark, and 
the soil which the king had granted to the corporation of Dun- 
dee, lay between it and the channel, or perhaps included the 
channel itself. The corporation therefore took the alluvion, be- 
cause they, not Smart, were the riparian proprietors, and as the 
land lay in a town, I might tell Mr. Jefferson that his note has 

* 8 Bro-wn. Pari Cos. Smart v. Dundee 

K 



74 

furnished me with the very case which his text had triumphantly 
told me it was impossible to produce.* 

Though this case was introduced by my adversary as an 
illustration of the law of England, it will be no bar to his telling 
me, as I might him, that it arose and was decided in Scotland, 
and that it is not therefore a compliance with my engagement. 
Let us therefore try if we can find none in England itself. 

In the book before cited, (Hargrave, 34) we have the case of 
an information filed against the tenant of lord Barclay, " setting 
forth that the river Severn was an arm of the sea, flowing and 
reflowing with salt water and was part of the ports of Gloucester 
and Bristol, and that the river had left about three hundred 
acres of ground near Shinbridge, and therefore they belonged to 
the king by his prerogative. Upon not guilty pleaded, the trial 
was at the Exchequer bar, by a very substantial jury of gentry 
and others of great value; upon the evidence it did appear by 
unquestionable proof that the Severn in the place in question 
was an arm of the sea; flowed and reflowed with salt water, was 
within and part of the ports of Bristol and Gloucester, and that 
within time of memory these were lands newly gained and inned 
from the Severn, and that the very channel of the river did 
within time of memory run in that very place, where the land 
in question lies, and that the Severn had deserted it, and that 
the channel did then run above a mile to the west."— On the 
other side the defendant claiming under the title of the lord 
Barclay alleged these matters whereon to ground his defence. 

1. That the barons of Barclay were from the time of Henry 
the Second owners of the great manor of Barclay. 

2. That the river of Severn was usque adflum aqux, time out 
memory, parcel of that manor. 

3. That by the constant custom of that country the jilum aqua; 
was the common boundary of the manors on either side of the 
river. 

* I invite the reader to examine this case, for I strongly suspect that the 
only quotation which Mr. J. gives from it, and which he introduces with bis 
expression " the book sajs 1 ', is nothing more than the marginal note of the pur- 
port of the case; generally the work of the editor, sometimes of the printer. If 
so, he might as well quote the index, but his expression would in that case 
have curiosa feiicitas — it would then, indeed, be the book, but not the author 
<u«fi»"cA says. 



75 

" When this state of the evidence was opened, it was insisted 
upon that the river in question was an arm of the sea, a royal 
river and a member of the king's port, and therefore that it lay 
not in prescription to be part of a manor; but the Court overruled 
that exception, and admitted that even such a river though it be 
the king's in point of interest prima facie, yet it may be by pre- 
scription and usage time out of mind parcel of a manor." — The 
defendant then went into his proofs, but as he was proceeding 
t4 -The Court and king's attorney general, sir John Banks, and 
the rest of the king's counsel were so well satisfied with the de- 
fendant's title that they moved the defendant to consent to with- 
draw a juror, which, though he was very unwilling, yet at the 
earnest desire of the Court and the king's counsel he did agree 
thereunto." " So that matter (says the learned reporter) rested 
in peace, and the lands &c. are enjoyed by the lord Barclay and 
his farmers quietly and without the least pretence of title to this 
day" — "This I know, (adds he,)for I was thoroughly acquainted 
with this case, and attended at the bar at the trial," and I may 
draw my inference in his words — " This great and solemn trial for 
the right of a royal river in a port and part of it doth fully prove 
that which I had to say touching this matter."— It will scarcely 
be necessary to remark that though this case is one of a claim 
by prescription, it cannot be stronger than one like mine by 
grant. There was no prescription for the soil in question, that is 
expressly (in the case) stated to be " newly gained from the 
Severn," within the memory of man. — See also in the same 
book p. 56, 57, the case of Sutton Poole at Plymouth, where 
thirty acres of land were adjudged to belong to the king as part 
of a manor. The premises are thus described: " There lies ad- 
jacent to this town (Plymouth) within the Barbican there a 
space of about thirty acres which is covered every tide -with the 
sea, and ships ride there and come to unlade at the keys of Ply- 
mouth. — This is mentioned, says lord Hale, the rather because 
the property was recovered by the crown, not" " upon any pre- 
rogative title" " but as parcel of laud belonging to a manor that 
once was a subject's" 

These cases I think must clearly evince that in England as 
well as in countries governed by the civil law the " whole bank 
and beach in towns are not necessary for public use" as our 
author has asserted, but are frequently vested in individuals^ 



and that there is no more foundation in the common than in the 
civil law, for the distinction that has been made between city 
and country property on this subject. 

I will now admit with Mr. Jefferson that in most instances 
in Europe and some in America, when towns have been esta- 
blished on public lands, the town lots have no right of alluvion; 
but the reason flows from the very principles I endeavour to 
establish, it is because the public is and individuals are not the 
riparious owner; all the land belonging to the sovereign, he 
grants lots by metes and bounds. These become agri limitati 
and are not entitled to the alluvion, but he, (the sovereign,) re- 
taining that part bordering on the waters is the riparious pro- 
prietor, and he, therefore, or the corporation of the town if he 
grant it to them, (as in the case of Dundee) becomes entitled 
to the right of alluvion as an accessory to his riparious property. 

Just so when a town is established on the lands of an indivi- 
dual; all the lots which he sells are bounded by the streets 
and have precise limits. The rest remains his property, and he 
retains it with all its accessories; should it be land bordering 
on a river, he has the right of alluvion, and should he lay out a 
street, the lots of which are bounded on the river, the grantees 
of those lots will enjoy the same right. 

This is precisely Gravier's case; he owned the whole land to 
the water's edge, he laid out a part of that land into lots, 
bounding them by precise limits, and referring for those limits 
to the plan. — All that he, did not sell he retained; in some in- 
stances he sold the batture with the lots, and by that act he 
bounded those lots on the river; in these cases the grantee is 
entitled to the alluvion; what he did not sell he of course re- 
tained, and was himself entitled to the increase. 

But it seems to me rather an extraordinary idea that merely 
by selling some lots on a plantation and calling it a suburb, the 
proprietor should by a kind of legal legerdemain lose his pro- 
perty in a valuable tract, xvhich then existed in front of those lots, 
and deprive himself of all the future increase. The existence of 
this land at the time of laying out the suburb is not only stated 
in the judgment, but is expressly acknowledged by one of the 
most able and zealous advocates for the title of the United 
States. Two of those gentlemen disagreed as to the principles 
on which their cause could be best defended, a very natural 



77 

occurrence when the cause is not clear. One of them admitted 
candidly that Gravier's ancestors had a right to the alluvion not 
only by the French but the Spanish law; but very ingeniously 
attempted to destroy their title on other principles. This his 
fellow-labourer in the same field considered as a dereliction of 
the cause and says: " If that were true no resource would re- 
main against Mr. Gravier but to prove that at the time of the 
establishment of the suburb, there was no portion of the batture 
sufficiently consolidated to be susceptible of being thus incorpo- 
rated with the estate. — But the contrary has been ascertained 
and it is probable that it may still be proved." — Yet with the 
evidence of this admission before him, together with that of 
the affidavits which he so frequently quotes, all of which speak 
of its existence at a period long anterior to the establishment 
of the suburb; with all this before him, Mr. Jefferson affects to 
treat the property in question as a non-entity at that period, and 
speaking of Gravier as the owner of the road only, asks these 
sensible questions: " Did any one ever hear of a man's holding 
the bed of a road and nothing else?" " Is it possible to believe that 
B. G. in selling his lots face aujleuve really meant to retain the 
bed of the road and levee?" If this be fair honest reasoning, if this 
be a candid appeal to the public, if such subterfuges and conceal- 
ments are admitted in argument, I have entertained very false 
ideas on the subject — nor could I conceive that the first magis- 
trate of our country would rest the defence of his conduct on so 
poor an artifice as this. The alluvion could not accrue to Gravier, 
because Gravier had nothing after he sold his front lots, but the 
road and the levee! Mr. Jefferson tells us this, the same gentle- 
man who told congress in enumerating and describing several 
parcels of ground in and near New Orleans, that there was be- 
yond the levee a " parcel called the batture which had been 
used immemorially by the city to furnish earth for the streets 
&c. and as a landing or quay," &c. If it had been used imme- 
moriallyhy the city it must have existed when the suburb was laid 
out, and if it existed then, there was something besides the road 
and the levee for Gravier to retain, and Mr. Jefferson has put it 
upon the records of the nation that he knew this, and now he 
does not hesitate to argue to that very nation as if he disbelieved 
or had never heard of its existence. — But take away the batture 
and the argument will not be a whit the better. If Gravier owned 



79 

the soil of the road, although the use of that road for the purpose 
of passage was in the public, the accessory would be his, subject, 
says Mr. Jefferson, to the same uses and servitudes — that is to 
say, that because the public have a right of way fixed by law to 
the breadth of forty feet over Gravier's land, when Gravier's 
land is increased to five hundred feet the whole shall be road. 
The use of such means of defence I believe will be considered as 
evidence of the most deplorable want of better materials. But 
even admit this, and what follows? Why, that the road, though 
five hundred feet wide, was still Gravier's; nothing gave it to the 
United States, and if he disturbed the public in the use of this 
broad way, the local authority would punish the offence, but the 
president acquired no right to seize upon it as lands belonging 
to the United States. 

III. We are next presented with a new ground of defence, 
this land, which through forty pages of the book has figured 
as an alluvion, which has been seized upon because the laws of 
France give alluvions to the king, is now an alluvion no longer. 
Mr. Jefferson most manfully asserts, (page 42), that he " does 
deny to the batture every characteristic of an alluvion," and the 
process by which he supports this stout assertion is edifying 
and curious. Let us examine it with the attention so rare an 
operation deserves. 

It is not alluvion: first, because the accession by alluvion must 
be insensible; and the increase of the batture may be perceived; 
every swell of six months " is said to deposit nearly a foot of 
mud, and when the waters retire, the increase is visible to every 
eye;" and " a single tide (meaning, I suppose, annual inunda- 
tion) extended the batture from seventy-five to eighty feet into 
the river, and deposited on it from two to seven feet of mud." 
Here is indeed a rare discovery! If the increase can be perceiv- 
ed on the retiring of the waters, it is no alluvion; this takes away 
one of the first characteristics in his own definition. It must be 
incrementum: an augmentation, an increase; and if an increase, it 
rnu^ t, of course, be perceived, it must be sensible to the eye after 
it is made, or it would never become the object either of pro- 
perty or discussion; yet according to our learned author, if we can 
see it after it is formed, it is not alluvion. I am astonished at so 
palpable an error, or so gross an attempt to mislead; it is found- 



7y 

ed on an ingenious contrivance of amalgamating all the words 
of different definitions, and from the mixture producing a ter- 
tium quid, to be found in neither. The word insensibly, is to be 
found in none of them, nor any equivalent word, in the sense in 
which Mr. J. employs it. It is " incrementum latens" a secret 
increase, that is hidden during its formation, as we gather from 
the remainder of the sentence: — "quod ita paulatim adjicitur^ 
ut intelligi non possit, quantum quoquo temporis momenta adji- 
ciatur;" — M which is so gradually added, that we cannot know 
how much is added in each moment of time" All this relates to 
the process of formation. In order that it may cease to be allu- 
vion, we must know, not how great the increase has been when 
the water has retired, but how much has been deposited in each 
moment of time. When Mr. Jefferson can solve this problem, as 
respects the batture, I will acknowledge that it is no alluvion;* 
but let him be the sponsor, and call it by any name he chuses. 
The truth is, and Mr. Jefferson well knew, and every man who 
. has read a word on the subject must know, that this branch of 
the definition is to distinguish alluvions from avulsions^ or the 
sudden removal of large bodies of land by the force of a tor- 
rent, the law giving the latter to the proprietor from whose 
lands they were torn; and had Mr. Jefferson given the people 
of the United States credit for a particle of understanding, he 
would never have addressed to them so extraordinary an argu- 
ment as that alluvion ceases to be alluvion, the moment you can 
discover to what extent it exists. Let us proceed with the trial 
of this misnomer, as our author calls it* 

* This argument is not new; it was urged before, and I gave the following 
answer to it: — " When the ingenious counsel can analyze the different de- 
posits, separate the sands of the red river, and the rich mould of the Missouri, 
from the clay and other various soils which the Mississippi receives from a 
thousand tributary streams — when he can dive into its turbid eddies, watch 
the moment of the precious deposit, and date the existence of each stratum of 
its increase — then this first branch of the authority he has cited, may be appli- 
cable to his cause." — It would be treating Mr. J. too much in the style he has 
most wittily and facetiously treated me, (p. 12.) to recommend a similar im- 
mersion to him. 

f After defining alluvion as an incrementum latens, Vinnius adds, " Ex quo 
crescit hujus acquisitionis zequitas nimirum quod quae alluvione accedunt ita 
lente et obscur£ detrahentur ut intelligi non possit, si forte de his r&slituentfo 
quxratur, quorum prim fuerint ant quibus detracta" — Vinnii Com. in Inst. lib. 2 
tit. 1,^20. 



80 

It is, secondly, no alluvion, because alluvion is created by 
u apposition of particles of earth;" but the batture has been 
created by deposition. Now the reader who wants to find this 
word in any of the definitions, either Latin, Greek, French, 
English or any other language, will be disappointed. It is cre- 
ated by a curious process, which is highly instructive. The 
original Latin is incrementum latens; here we find nothing about 
apposition; but this, we are told, has been translated by Theophi- 
lus into Greek, and that he calls it " Prosklusis and Prosch8sis>" 
which prosklusis and proschVsis are brought back again into Latin 
by Curtius, under the names of adundatio and ad-aggeratio. 
Here you see we have got incrementum latens, thanks to Theo- 
philus and Curtius! back again into Latin; but so changed, that 
the father of the phrase himself would hardly know his child. 
But this is not all: the unfortunate word is not yet released from 
the torturing hands of these magicians; after the Latin comes 
the American conjuror— another metamorphosis is to be made; 
he creates two potent words for the purpose, and presents us* % 
with adundation and ad-aggeration; but as all his readers might 
not understand this new vocabulary, he changes ad into ap, unda 
into posi, and adundation becomes apposition; and thus incremen- 
tum latens having gone through the hands of Theophilus, Curtius 
and Jefferson, comes out, " apposition of particles of earth." I 
am deceived if there was ever a more ingenious process; a trou 
blesome word in a definition or a text, may, by the aid of a few 
translations and re-translations, be made to mean any thing w 
please; and the instance stated in the note, shews that it has 
once before been applied with success to effect a change of 
name.* It is unfortunate too for our author, that none of these 

* An unfortunate Scotchman, whose name was Feyerston, was obliged, in 
pursuit of fortune, to settle among some Germans in the western part of New 
York. They made a much better proschosis than Theophilus did; they trans- 
lated him literally into German, and called him Fewrstein- On his return to an 
English neighbourhood, his new acquaintances discovered that Feuerstein in 
German meant Flint in English. They re-translated instead of restoring his 
name, and the descendants of Feyerston go by the name of Flint to this day — 
I ought however to except one of his grand-sons, who settled at the Acadian 
coast, on the Mississippi, whose name underwent the fate of the rest of the 
family: he was called by a literal translation into French, " Pierre a fusil" and 
his eldest son returning to the family clan, underwent another prosklusis, and 
was called Peter Gun. 




81 

terms, either in Greek or Latin, have the meaning he has given 
them. I speak of apposition, which being English, I understand; 
as for adundation and ad-aggeration, which he has formed by 
adding an n to the Latin termination, as this does not, I think, 
give them a legitimate place in our language, I must consider 
them still as Latin, and tell Mr. Jefferson, which I do with 
great deference, that the first means simply alluvion, (see God- 
frey, note on Dig. 41. 1. 7.) and the second means the action of 
heaping up, of raising a mound, and is derived from ad and 
aggero, which last word comes from agger, an accumulation, a 
mound, an heap of earth, not ager, a field. Agger arence, Virg. 
an heap of sand: so that if alluvion is ad-aggeratio, it is a deposi- 
tion, not an opposition. The other word, adundatio, conveys, 
from its etymology, the idea, that the increase was made by the 
action of the water; so that the whole of this translation and 
re-translation is perfectly labour lost; and even with the aid of 
Theophilus and Curtius to boot, we cannot make alluvion to 
mean opposition of particles of earth. Indeed, the idea is one 
of the most extraordinary that are to be met with in this extra- 
ordinary book. That the river is to plaster the sand, upon a 
perpendicular bank, as the mason plasters the walls of a cham- 
ber, and that it must adhere there, or it loses its name, it is no 
alluvion* — what shall we say to such fancies? That they are 
more ridiculous, but intrinsically quite as good as any of the 
other reasons that have been urged by our author in justifica- 
tion of his condnct. 

Thirdly, we are told it is no alluvion, because it is not form- 
ed against the adjoining^/o', so as to make apart of it. Throw- 
ing the quibble on the word jield out of the question, I would 
ask, how it is proved that this increase is not consolidated with 
the adjacent land? In the first place, we are presented with the 
levee and road, as forming a breach in the " continuity;" but as 
I have shewn that the road and the levee are land, and that land 
the property of the person under whom I claim, they do not 
break the continuity; on the contrary they preserve it. Next, 
" There is no extension of its surface, so as to form one with 
the former surface, so as to be a continuation of that surface, so 

* The deposition of earth on the bottom of a river, can no more be said to 
be an apposition to its sides, than the coating the floor of a room can be said 
to be plastering' its walls. — "Jeff. p. 44. 

L 



32 

as to be arable like that." I quote literally here; because being 
not quite certain that I understand what is meant, I wish my 
reader to judge for himself. No extension of a surface so as 
to form one with a former surface, so as to be a continuation of 
it, so as to be arable like it! If by former surface, is meant the 
former surface of the batture, I agree with Mr. J. it does not 
form one with it, it is not a continuation of it; because the pre- 
sent surface is some feet higher than the former was many years 
ago; but then I do not see how this can be required as the cha- 
racteristic of a species of property, which only grows into ex- 
istence by yearly changing its former surface. He must mean 
by former surface, that of the land to which the alluvion is 
annexed; but on this supposition, I am equally at a loss to un- 
derstand the phrase; he does not surely mean to present us here 
again with the idea, that the extension of. the surface was 
broken by the road and the levee, because this last argument is 
introduced by the words, " even supposing the continuity not 
to be broken by the intervention" of these objects. Taking away 
then the levee and the road, what is there to prevent the exten- 
sion of the surface? what other object intervenes to interrupt it? 
None: for we are told in the next sentence, that it abuts against 
the bank; if so, there is a continuity of surface; nor is it inter- 
rupted even if the fact were true as asserted, that this surface 
" is below the level of the adjacent field:' 1 ''* unless our learned 
author will call on Theophilus and Curtius, to help him to a new 
feature in his definition, and require all alluvions to be on a 
level with the adjacent field. Without their aid we are however 
presented with a new one: — " It (the batture) is not arable like 
it," (the former surface) meaning always, I presume, the origi- 
nal soil. To be alluvion then, it must be arable land; pasture 
land, meadow land, wood land, will not do. It must be arable, 
and arable like; that is, I suppose, in the same manner with the 
original soil. But how if the original soil be not arable? How 
if it be woodland? must the alluvion, to be alluvion, be like it in 
this respect also? Must it start out of the bosom of the waters, 

* Observe here how our author has unwittingly clone homage to truth, anil 
contradicted his own sophisms on the word ager, by calling the property to 
which he denied any of the characteristics of this word, the adjacent field. 

False reasoners, as well as others of a worse description, should have goo<:' 
memories. 



83 

covered with full grown trees, that it may make, " un tout avec 
la terre voisine?" How if the alluvion should unfortunately, as 
it some times is, be composed of barren sand? Can no property 
be acquired in it? Must it be, as our author tells us, " fit for the 
the same use?" and if the alluvion, annexed to my cane-field, 
cannot produce canes, am I forbid to pasture it? What shall we 
say to this train of reasoning? What shall we think of the cause, 
that obliges a man of the late president's standing to recur to 
such arguments? If they provoke a smile even from the man 
who has been ruined by their application, certainly no indiffe- 
tent reader can peruse them, without a broader expression of 
mirth. 

Having shewn how utterly inconclusive Mr. Jefferson's rea« 
soning is, even on his own statement of facts, I pray the reader 
to cast his eyes on the levels contained in plate No. 1, fig. 2, 
and he will find that a very great proportion of the property in 
question, is as high as any part of the original soil in its natural 
state; and that all of the alluvion, to within a few feet of the 
river, is much higher than all that part of the plantation back 
of the lots; that is to say, higher than three fourths of the ori- 
ginal soil. 

Let me desire him to remember Mr. Derbigny's acknow- 
ledgement, that it had been ascertained, " that at the time 
of the establishment of the suburb, a portion of the batture had 
been sufficiently consolidated, to be susceptible of being incor- 
porated with their (the Graviers') estate." 

Let me refer to Mr. Jefferson's own acknowledgement of the 
fact, (p. 61) that at a very early period it was so far consolidated, 
that buildings were erected thereon, which the Spanish Gover- 
nor ordered to be pulled down. 

Let me invoke the judgment of the superior Court deciding 
this fact, that "from the evidence in the cause it appeared, that 
antecedent to the time when Bertrand Gravier ceased to be the 
proprietor of the land adjacent to the high road, a batture or 
alluvion had been formed adjoining the levee, in front of the 
Fauxbourg, and extending the whole length of the Fauxbourg 
upon the river; and that this alluvion was then of safficieJit 
height to be considered private property, and had consequently 
become annexed to, and incorporated with the inheritance of 
Bertrand Gravier." 



84 

And let me ask any unprejudiced man in which we are to 
place the most confidence, Mr. Jefferson's assertion of fact, or 
his deductions of law? 

Having shewn in the most satisfactory manner, as he thinks, 
that this property is not alluvion, he kindly undertakes to tell 
what it is. — -And what, courteous reader, do you suppose it 
may be? — Nothing else than a part of the bed; — yea, of the 
very bed and bottom* of the river Mississippi. In support of this 
strange assertion we are again favoured with a great deal of 
etymological learning; but as usual with our author, much of it 
false, and all inapplicable. The Romans, in defining the word 
river, said that it consisted of u banks, a bed and water." The 
moderns it seems, with greater accuracy, distinguish, bv an ap- 
propriate name, that u band'''' which lies between high and low 
water mark. This Mr. Jefferson says is part of the bed of the 
river; in English it is called beach, which is derived from 
the Anglo-Saxon beotian,\ to beat — 

In Spanish playa, 1 

In Italian piaggia, \ from the Greek plaga, a stroke. 

In French, plage, \ 



* Mr. J. makes use indifferently of these two expressions. " The deposition 
of earth on the bottom of a river, &c. p. 44. And in his Message to Congress, 
of the T'th of March, 1808, he describes the batture to be • a shoal or elevation 
of the bottom of the river.' 

| Our author is very careful to inform us that this word must be pronounced 
bekchian: it is a necessary caution; some wicked punster might otherwise 
pronounce it as it is written, beotian, and apply it to an etymological research, 
in the maze of which a great genius had been bewildered. I will not assert, 
that this Saxon word is manufactured for the occasion, because I have not 
the means here of ascertaining the fact: but I strongly suspect it; and for 
this reason: Johnson derives the word beat, not from beatian, as I think he 
would have done, had that obvious root existed, but from the French battre; 
and this last word, the Dictionaire de Trevoux derives from the Latin ba- 
tuo. — Since writing the above note, I have been favoured with an extract from 
Hickes's Anglo-Saxon Grammar, in which the English verb to beat, is render- 
ed betan, and beotan; the i it seems has been introduced, to give some colour for 
making it the root of beach; because, according to Mr. Jefferson, it is very 
clear that the Anglo Saxons had adopted Dr. Sheridan's rules of pronun- 
ciation, and that their German idiom was sounded exactly like the modern 
English; and therefore, the word beatian or beoiian, must, in the time of king 
Ethelwolf, have been pronounced bcachian, precisely as the words christian, 
fustian, question, are now pronounced christchian, fuschian, qiieschion, &c. See 
Jeff. p. 45. 



85 

Batture also comes from battre, to beat; therefore batture means 
a beach; therefore it is not alluvion, which was to be demon- 
strated. By the very same process I could prove it to be a bat- 
tery, a battalion, a battering ram, or any other object derived 
from the same root. But in the first place, batture is not a beach; 
it is a term to be found in none of the editions of the French 
Dictionary of the academy, up to Smitt's inclusive, in the year 
1799. It is, however, a word in general use on the Mississippi, 
and has a meaning here, as well defined as any other in the lan- 
guage. Of this Mr. J. had he been inclined to manage this con- 
troversy with the dignity which became his station, and even 
with the candor necessary to preserve appearances, would have 
acknowledged; because he knew, that until he suggested the 
quibble of calling it a shoal, all those engaged in the controversy 
called it an alluvion, and defended the public right to it as 
such. To prove this, take the first page of that very Opinion 
on which Mr. Jefferson grounded all his proceedings; that very 
Opinion with which the attorney general says his coincided — 
the Opinion of Mr. Derbigny: — 

u Having considered the above statement of the case, toge- 
ther with the documents relative to the batture or alluvion there 
referred to, and the testimony heard in the suit between Jean 
Gravier and the corporation of New Orleans." 

" The undersigned counsel is of opinion that the said batturc 
or alluvion, is a property formerly royal, which passed from the 
crown of France to that of Spain, and belongs at present to the 
United States." 

" This opinion is founded on the following reasons: 

'* 1st. Alluvions on navigable rivers belonged to the king ot 
France. 

"2dly. The plantation bordering on the limits of the city of 
New Orleans was sold by the king of France in 1763, when the 
alluvion situate in front of that land was already in being. 

" 3dly. Between the alluvion and the land sold, lay a royal 
road (the same that still exists) and a levee, both which were 
then and have still remained public property. 

" 4thly. The alluvion in question has never ceased to be a 
royal property, the enjoyment of which the French and Spanish 
governments at all times left to the public, and on which the*- 
constantly hindered private individuals from encroaching. 



86 

" 5thly. Neither Jean Gravier nor those from whom h<* de- 
rives his title, ever were in possession of the alluvion; and Ber- 
trand Gravier himself, at the time of his settling a suburb in 
front of his plantation, declared that he had no claim to the 
alluvion." 

Here, I think, is abundant testimony that batture and alluvion 
were at one period at least of the controversy considered as 
synonymous, and that too by a person better qualified to give 
the signification of a local term than an inhabitant of Virginia; 
and that its signification was not restrained to an alluvion cover- 
ed with water during some part of the year, we learn from the 
same source, page xxvi. Mr. Derbigny says: " It is evident that 
when France ceded Louisiana to Spain, the right of the king of 
France to the property of all the alluvions then formed on the 
Mississippi was conveyed to the king of Spain, and that if the 
king of Spain had thought proper to avail himself of that title, 
he might have remained proprietor of all those new grounds. 

" The king of Spain, through liberality towards his subjects, 
left the inhabitants of the borders of the river, in general, the 
quiet enjoyment of those new grounds; and for the encourage- 
ment of agriculture in this colony, which was as yet in its 
infancy, he constantly permitted them to be converted into 
cultivated fields, not even at any time hindering the proprietors 
of plantations in front of which they were formed, from alter- 
ing the site of the high road, in order to take possession of 
them. Hence it follows that the battures already formed at the 
period of the cession of this colony to Spain are now become 
the property of the riparious inhabitants by right of long posses- 
sion, as securely as those formed since are their property by the 
Spanish laws." 

Here, certainly, is the strongest evidence of a notorious fact, 
that batture in the common parlance of the country means that 
part of the land which has been gained from the river, even after 
it has been diked in and reclaimed; and it is equally notorious, 
that in inquiring the value of a plantation, the first question is: 
Is it batture or ScorP — the first designating those lands which 
are increasing by the action of the river, the last those that are 
losing by it; — and this, I repeat, Mr. Jefferson knew. Let us, 
however, proceed with his etymological proof* 



87 

I have shewn that batture does not mean " that band or mar.' 
gin of the bed of the river which lies betwixt high and low- 
water mark." — Do the other words which he has supposed to 
be derived from the same root designate that idea? 

Plage in the French, is derived, says the Dictionaire de 
Trevoux, from the Latin plaga, from the Greek plax^ plagos, 
fat, smooth; and to a similar source may be traced the French 
word platin, which also means beach, and which Mr. Jeffer- 
son would fain derive from the Greek plettein, percutere, to 
strike; but afterwards confesses with a perhaps, that it may 
originate from the French plat, flat. Jefferson, 45. Whatever 
mav be its derivation, it does not signify the shore between 
high and low-water mark, but that part of it above the reach of 
the wave. "Plage rivage, de la mer plat et decouvert." Shore of 
the sea flat and uncovered. Diet. Acad. 

Playa in Spanish has the same signification, and is translated 
by the word plage in French. And piaggia goes further still, for 
it is " a strand or high shore." Barettis' Diet. 

So that if Mr. J. will have the batture to mean plage, play a^ 
or piaggia, we find that so far from signifying the band or mar- 
gin which lies below high- water mark, its meaning is expressly 
the contrary, and that in Italy, Spain and France, it lies out of 
the waters reach. Was the member of the National Institute 
ignorant of the signification of these terms, when he employed 
thern? or did the upright republican magistrate strive to deceive 
his masters by the misuse of foreign terms, when he was shew- 
ing them that u their servant had done his duty"? 

It is not therefore extraordinary that Mr. Jefferson could find 
in Latin " no term which applies axactly to the beach of a river" 
A faithful translation was all that was wanted to shew that he 
would find it in no language, in none at least of those he has 
quoted, or of the very few others with which I am acquainted. 

But, though they happen to be in my favour, I am ashamed 
of these cobweb arguments, half hidden in the darkest nook of 
antiquity. Their texture can only be discovered through the 
night-glass of the etymologist, and then so doubtfully and ob- 
scurely that no certain conclusions can be drawn from the re- 
search; and I should be extremely sorry that my case were to 
depend on shewing that beach is derived from beachian or beo- 



88 

tiariy or plage from plegeis. Upon the whole, I dismiss the chap- 
ter of etymologies by referring the reader to Swift's ingenious 
attempt to shew from the names of Homer's heroes, that the 
English language was spoken at the siege of Troy; and 'I apply 
to Mr. Jefferson on this point what Johnson says of Wallis, that 
" his derivations are so made that bv the same license any lan- 
guage may be deduced from any other."* 

The object of all this research is to shew that the property in 
question, lying between high and low-water mark, is part of the 
bed, not part of the bank of the river, that the bed of the river 
is public property, and that consequently this belongs to the 
public. — But has he forgotten, or does he think that his readers 
have forgotten, that the bed of the river is only public while 
covered with water— that it is not a public property in the soil, 
but only a public use — a servitude of navigation. " Riparum 
quoque usus publicus est jure gentium sicut ipsius Jluminis." 
il The use of banks is public in the same manner as that of the 
-iver itself" Inst. Lib. 2. Tit. 1. s. 4. 

See also Vinnius' Commentary on this passage. 

But as soon as the water is removed, the bed becomes the 
property of the adjacent proprietor, according to the follow- 
ing, among other, authorities: — "Quod si toto naturali alveo 
relicto, flumen alias fluere ceeperit: prior quidem alveus eorum 
est qui prope ripam prsedia possident." — " If the river, leaving 
its natural bed, shall flow in another channel, the former chan- 
nel is the property of those who own the land on the banks." 
Dig. 41. 1. 7. § 5. — The same provision is made by the Law of 
the Partidas, 3d part, tit. 28, law 31, almost in the same words:— 
14 Mudanse los rios de los lugares por do suelen correr, e fazen 
sus cursos por otros lugares nuevamente, e finca en seco aquel- 
lo por do solian correr: e porque puede acaecer contiendas, cuyo 
deve ser aquello, que assi finca, dezimos que deve ser de aquel- 
los, a cuyas heredades se ayunta; tomando cada uno en elio tan- 
ta parte, quanta es la frontera de la su heredad de contra el rio. 

* I have heard of an etymologist who derived the name of the river Potomac 
from the Greek Potamos. This derivation is quite as probable as that of beach 
from beotiati; being founded on a much greater similarity of sound, as well aj 
analogy of sense 



89 

E las otras heredades por do corre nuevamente, pierden el 
senorio dellas aquellos cuyos eran, quanto en aquello por do 
corren: e dende adelante comienca a ser de tal natura, como 
el otro lugar por do solia correr, e tornase publico assi como el 
rio." 

And to come to the law of France, which it is said must be 
the criterion, we have, on this particular point, first, the opinion 
of the tribunal of Rouen, above quoted, "that the river itself is 
not a national domaine, but a thing of which the public have the 
use. It belongs to the nation, not in full property, but as an ap- 
pendage of its sovereignty;" and conformably with these princi- 
ples, we have the following decisions:— 

*.* II a ete rendu depuis peu d'annees (say the parliament of 
Bordeaux, in one of their Remonstrances) quatre arrets solem- 
nejs du conseil de la grande direction, par lesquels il a ete juge 
que des terrains pres des bords des rivieres affluentes a la mer, 
et couverts periodiquement par les eaux de ces rivieres, lors du 
jlux et reflux, ne font pas partie des rivages de la mer, et qu'ils 
appartiennent en toute propriete aux particulier3 qui les posse- 
dent; les deux premiers de ces arrets des 6 Aout. et 13 Dec. 
1771, ont declare patrimoniaux les marais et greves* d'Apde- 
ville et d'Amfreville sur lesquels le jlux de la mer se porte 
regulierement dans les hautes marees. Le troisieme du 27 Juil- 
let, 1778, rendu au profit du seigneur et des habitants de Sal- 
nelle a annulle une concession, surprise en 1765, du marais ou 
commun de Salnelle, situe sur la riviere d'Orne, qui est baigne 
periodiquement par les eaux de cette riviere dans les hautes ma- 
rees et ce, nonobstant deux arrets du conseil des finances par les 
quels ce seigneur et ces habitants avaient ete deboutes de leurs 
oppositions a cette concession. — Le quatrieme du 12 Aout. 
1782, sans s'arreter a des fins de non-recevoir proposees par le 
Marquis de Courcy, concessionnaire, aordonne l'execution d'un 
arret du 21 Mars, 1770, qui avait declare la concession obrep- 
tice et subreptice, et avait juge que la greve de Brevart n'etait 
pas un bord et rivage de la mer, quoique le grand flot de Mars 

* Lieu uni et plat, oouvert de gravier et de sable, le long de la mer ou d'une 
grande riviere. Diet. Acad. — A smooth or flat surface, covered with gravel or 
sand, along the sea or a great river. 

M 



90 

s?y portdt. Ces quatre arrets sont cites dans un memoire im- 
prime, presente au conseil dans l'affaire entre Monseigneur le 
Comte d'Artois, le sieur Tardif de Mondesir, les heritiers 
Lahouger et autres parties." — " Four solemn judgments have 
been had, within a few years, in the council of the grande direc- 
tion: by which it has been decided, that lands, situate near the 
banks of rivers flowing into the sea, and covered, periodically ■, by 
the waters of these rivers, at the time of the flux and reflux, are 
not a part of the strand of the sea, and that they belong to the 
individuals who possess and improve them. The two first of 
these judgments, of the sixth of August and thirteenth of De- 
cember, 1771, adjudge, as estates of inheritance, the meadows 
and beach of Apdeville and Amfreville, which are covered regu- 
larly by thejlux of the sea in high tides. The third, of the twenty- 
seventh of July, 1778, given in favour of the lord and inhabi- 
tants of Salnelle, annulled a concession, obtained in the year 
1765, of the meadows or commons of Salnelle, situate on the river 
Orne, which are covered, periodically, by the waters of that 
river, in the high tides', and this, notwithstanding two sentences 
of the council of the finances, by which this lord and the inhabi- 
tants, had been foiled in their opposition to this concession." 

" The fourth, of the twelfth of August, 1782, notwithstanding 
the pleas in bar, offered by the marquis of Courcy, the grantee, 
ordered the execution of a sentence of the parliament of Rouen, 
of the eleventh of March, 1770, which had declared the conces- 
sion surreptitiously obtained, and had adjudged, that the beach 
(greve) of Brevart, was not a strand or shore of the sea, 
although it was covered by the spring tides, and, consequently, 
maintained the lord and inhabitants in their possession."— 
These four judgments are cited in a printed memorial, presented 
to the council, in the suit between the count d'Artois, the sieur 
Tardif de Mondesir, and others. 

Let me now bring to the recollection of the reader, the de- 
scription of the premises in the decisive Bordeaux case. They 
are said to be, u les bords ou le rivage de la riviere de Gironde;" 
and it is expressly stated, that " ils sont atteints par celles (les 
eaux) que la riviere y porte dans les grandes marees;"— " the 
banks or beach (strand) of the river Gironde, which are reach- 
ed by the waters which the river carries there in high tides." — 
Now the object in dispute in all these cases, was precisely Mr* 



91 

Jefferson's "bandar margin of the bed of the river, which lies 
between high and low water mark;" yet the courts uniformly 
declare it to belong to the adjoining proprietors; and the king, 
in the last case, formally confesses, that he never had any title 
or pretension to property of this description. 

But why multiply authorities, or cite decisions to refute what 
my adversary refutes for me himself, and shews by his own 
reasonings and definitions, to be wild, fanciful, I had almost 
said absurd. 

He acknowledges that there is alluvial property, and that it 
must be formed by the " apposition''' of particles of earth to the 
adjacent Ji eld, that is to say, to the field which is adjacent to the 
river; but if this band or margin, which he tells us, in the present 
qase is two hundred and forty-seven yards wide— if this band or 
margin always separates the field from the river, how is it adja- 
cent? or in what manner can the particles of earth be transported 
across this margin, so as to be plastered (as he terms it) against 
the banks? Let it be remembered, that this band, margin, or 
beach, lies between the highest periodical inundation and the 
lowest water; but as the water can carry nothing farther than 
itself extends, all its deposits, all its appositions must of course 
be on this margin; which being public, the soil deposited on it 
must be so too; and this band, margin or beach, however in- 
creased in height, would always exist to prevent the extension 
of the field one single line towards the river. The conclusion 
then would be, that there can be no alluvion; which is defined 
by our author himself to be, " the extensio?i of the Ji eld added by 
the waters.'''' This new-fangled idea, then, would utterly destroy 
the ground-work of his own definition; and the only part of it, 
as I have shewn, that is not as fanciful as his public property, in 
the aforesaid band, margin or beach. 

The most curious part of all this reasoning is yet to come. The 
space between high and low water-mark is not part of the bank, 
but of the bed of the river. Why? because a bank is defined in 
the Roman law to be, that which contains the river when fullest 
— " Ripa ea putatur esse quae plenissimum flumen continet;" 
and in the Spanish — " La ribera del rio se entiende todo lo que 
cobre el agua de el, quando mas crece en qualquiera tempo del 
ano, sin salir de su yema y madre." Cur. Ph. The translation of 
which is, — " By the bank of the river we are to understand, all 



92 

that its water covers when it is most swelled, without leaving 
its channel or bed." Now taking these two definitions together, 
and I allow them to be correct, what is the bank? That, says 
the first, which contains the fullest river; that, says the second, 
which the waters of the fullest river cover, when it does not 
overflow. Now I ask any man of common sense, whether these 
two definitions do not apply exactly to Mr. Jefferson's band. 
What is it that contains the fullest river? The space between 
high and low water-mark. What contains the river at its lowest? 
That which is below low water-mark. What is covered by the 
■water of the river -when most swelled? Precisely the same space 
between the high and the low water-line. What is covered by 
the water of the river when it is not swelled? The bed, or that 
part which is below the low water-line. All above low water- 
mark, therefore, by the very words of his own authorities, is 
bank; and as he has been at great pains, with what success we 
shall presently see, to prove that this is the position of my pro- 
perty, he has proved it to be the bank, and not either the bed of 
the river or its beach. 

I am here forced to remark a recurrence of one of the cir- 
cumstances which render this controversy extremely unpleasant. 
Reasoning of every species I ought to be prepared to meet; if 
fair and unanswerable, I must yield to its force — if specious 
only, I must detect its sophistry. Of false reasoning, therefore, 
I ought not to complain; but I protest against false translations. 
They are destructive of the good faith which ought to reign 
even among the most virulent disputants; and deceive those, who 
confide as well in the author's integrity, as in his ability to ren- 
der faithfully all the texts which he may cite. A single instance 
it would be uncandid to characterize thus seriously, even if it 
were important; frequent instances might be passed over in 
silence, if they were not very material; and both in the one and 
the other case, they might be ascribed to ignorance of the lan- 
guage, if the author did not profess an acquaintance with it, and, 
what is more important, if he had not before him faithful trans- 
lations of the very passages he perverts. But when the false 
version is so important as to be made the basis of an argument, 
where it occurs more than once, and where the author not only 
understands the language, but is guided in the interpretation of 
the very passage, by an able and strenuous advocate in the same 



93 

cause;* under such circumstances, I confess I can feel no indul- 
gence, and admit of no excuse. Without the fear, therefore, of 
being deemed uncharitable, I proceed to detect a second attempt 
to impose on the public by a false translation from a language, 
little understood by the readers of his book. 

Mr. Jefferson is endeavouring to prove that the space between 
high and low-rvater mark is not the bank, but the bed of the 
river. If he had told his English reader that the Spanish autho- 
rity on which he most relies, declared " all that to be the bank^ 
which was covered by the waters of the river in their highest 
swell;" he was well aware that he might have been answered, 
" Your authority proves the reverse of your proposition, the 
space between low and high-water mark being covered by the 
waters of the river, when at their highest swell, is precisely 
that which your authority calls the bank; how then can you tell 
me it is the bed?" — To avoid this difficulty our author, without 
scruple, changes the phrase in a material part, and translates the 
authority, so as to make it say, " The bank of a river is under- 
stood to be the whole of what contains its water when most 
swelled." The Latin and French authorities describing the 
shores of the sea (littus) admitted of a wretched quibble. Littus 
est quousque maximus fluctusa mare pervenit. Dig. 50. 16. 96. 

Est autem littus maris quateniis hibernus fluctus maximus 
excurrit. Ins. 2. 1.3. 

Sera repute bord et rivage de la mer, tout ce qu'elle couvre 
et decouvre pendant les nouvelles et pleines lunes, et jusqu'ou 
le grand flot de mer cesse de se faire sentir. Boucher. 

These passages all describe the shore to extend as Jar as the 
highest waves of the sea. This seems to be tolerably plain, and 
to define with sufficient certainty all that to be the shore of the 
sea which was sometimes covered with its waves; but Mr. Jef- 
ferson in his deductions reverses the sense of the phrase, though 
he translates it truly, and construes the quousque, the quateniis 
and the jusqiCoii to mean down to. That, according to him, is 
shore which lies above the high-water mark, all is bed below it. 
But the Spanish passage gave no reason for this fine spun con- 
struction, it expressed the same idea in other words and told 

* Mr. Thierry (Exam. p. 17) thus translates this identical Spanish passage : 
" The bank of a river comprises all that its waters cover, when at their highest 
ewell, at any time of the year whatever, without going out of its bed." 



94 

us expressly that the bank was that which was covered by the 
water when it was most swelled without actually overflowing; 
it was therefore to be tortured in the translation until it was 
made to speak the language he wished. Again I ask, how is a 
controversy to be managed with men who use such means? 

If any proof were wanting that his deduction from these pas- 
sages is unwarranted, it would be found in the quotation he 
makes from Brown's Civil Law. " By shore, the Institutes mean 
up to the high-water mark or &c. as high as the highest water 
wave washes." How is it possible for the man who cites this 
authority and relies on it, to conclude that the shore lies above 
high -water mark.* 

As a proof that the practice is different, the declaration of 
Mr. Charles Laveau Trudeau is quoted, that " the grants of 
lands on the Mississippi have their fronts on the edge of the 
river itself and when its waters are at their greatest height." 
Other parts of the same deposition, however, are candidly sup- 
pressed, in which he says u the batture he always considered as 
an alluvion, and although it did not form any part of the depth, 
yet he always considered it as much the property of the pro- 
prietor as the rest." No declaration, however, would suffice to 
shew that the practice of the country had been in conformity 
with Mr. Jefferson's principles, except it established the occu- 
pation of the alluvial lands in the crown; of which, if Mr. Jef- 
ferson can find a single instance for one acre in the whole 
province, I bind myself to release every future claim.— -Yet he 
roundly asserts that the law, such as he lays it down on this 
point, has been constantly practised on in the territory. — The 
ridiculous consequence from this establishment of the bank of 
the river at the height its waters attained in an inundation was 
however so obvious, a river without banks was so extraordinary 
a phenomenon, that he is forced to say something on this sub • 
ject; and what is it he does say? Why, he very ably, but not very 

* Although I do not think the poets the very best authority in a juridic; 1 
controversy, nor am I disposed to imitate Mr. Jefferson, when he quotes !in< s 
out of St. Evremont, to prove the legal signification of a French term; yet Vi - 
fit has, in one line, so distinctly marked the difference between the bed of tl e 
river, and the fiehk which it inundates, that I cannot resist the temptation of 
quoting them: 

Aut pingui flumine Nilus 



Cum reffuit campis, etjam se condklit alveo. — .^Eneid, L,. 9, v. Sh 



95 

truly insinuates that we have " exaggerated the strong features 
of the Mississippi, have distinguished it from the other rivers 
of our country, and considered it as sui generis, not subject to 
the laws which govern other rivers, but needing a system of law 
for itself, until which system be prepared, it maybe abandoned 
(he most pathetically adds) to speculations of death and destruc- 
tion like the present." It is unfortunate for our eloquent author 
that this fine flourish has nothing to support it; the Corinthian 
capital has neither shaft nor base. We have never founded any 
argument on the distinction between the Mississippi and other 
rivers — we have never said that it wanted a system of its own, 
or required time to prepare that system of laws. — On the con- 
trary we have always appealed to the laws established in pari 
materia, and have said that the proprietors of lands on the 
banks of the Mississippi have precisely the same rights with 
those of landholders bordering on other rivers, while Mr. Jef- 
ferson is himself the author or rather the copyist of those argu- 
ments which strive to establish a distinction — which class this 
river among non-descripts in geology, and characterise it as 
one which from the earliest ages existed without banks, until 
they were provided for it by the industry of man. — As however 
in this page (50) or rather in a part of it he seems to think it for 
the good of the nation to assimilate all its parts, and to deal out 
law and justice to all by the same ride and the same measure, I 
gladly avail myself of those favourable dispositions, and before 
we proceed to the next page, where we find them forgotten or 
abandoned, I close with the proposition, and claim the right of 
applying to the low lands of the Mississippi the principles which 
secure their property to the owners of the bottoms on the She- 
nandoah, the Potomac and James river, although those rivers 
once and perhaps oftener in a year cover them with their waters. 
— According to Mr. J., (p. 45), this annual swell is " an annual 
tide," and he says, in the state in which he is, that tide begins 
the first of November, rises until February, and then ebbs until 
April, when it is low water. — If it can be proved to me without 
the help of poetical quotations,* and without either prosklnsis 

• For instance, Mr. Jefferson, who is so fond of quoting St. Evremont, might, 
perhaps, refer me to his correspondent Waller, who, when he wanted a rhyme 
for " the river's verdant side," did not scruple to call the stream a tide. But I 
am not prepared to yield to such authorities. 



96 

or proschosis, that the inundation of a river, either regular 
or irregular, annual or semi-annual, above the flux of the sea, 
was ever before called a tide, I will give up all pretensions as 
well to the property, as t> any knowledge of the language in 
which we write; and Mr. Jefferson himself in the very sentence 
preceding this, evinces the improper use he makes of the term, 
for he says, " above the flow of tide it is covered half the year 
instead of half of every day, the tide there being annual only, or 
only one regular tide in a year." Which being rendered into 
English amounts to this: Above the tide, that is where the tide 
never comes, there is a tide for half the year. — Where such 
liberties are taken with the language, it is easy to write vo- 
lumes, but difficult either to be understood or to convince. It is 
not, however, the interest of our author to speak English; if he 
called the overflowing of the Mississippi by its proper name, an 
annual inundation, there would be no room for all the fine-spun 
arguments he has used; a river inundates its banks, it overflows 
the fields in its vicinity, but it never yet was said to inundate or 
overflow its bed. Again I repeat, let Mr. Jefferson or his ad- 
mirers shew me an instance, in which any man who understood 
the language has ever before this called the annual or the occa- 
sional inundation of a river above the flux of the sea a tide, or 
the lands occasionally covered by them a beach, and I give up 
the controversy. Until this is done let them and him confess, 
that this is an inadmissible perversion of language, and an at- 
tempt to impose upon his readers, which betrays the contempt 
he has for their understandings. 

But the Mississippi had no banks from Baton Rouge to 
the sea, until they were raised by the French settlers; nature 
had left this king of floods unprovided with them, until they 
were supplied by art. The first settlers lived in the bed of the 
river until they were numerous enough to raise levees. The 
grants of land were all void, for our learned author himself 
tells us, page 53, that though the bed of the river belongs to the 
king, " it cannot become the subject of alienation," and has shewn 
much patience in transcribing authorities to prove that he holds 
it for public use. Instead then of conveying so much land on the 
banks of the river, each of the early grants should have de- 
scribed so many acres in its bottom. And if the observation, p. 
12— that if I had not been driven from my property I should 



97 

have been some feet underwater; if this Attic observation were 
intended for argument, it is one that would apply to all the first 
settlers in the country before they had made their embankment. 
The conclusion is as irresistible as the reasoning is luminous — 
" Wherever, therefore, the banks of the Mississippi have no high 
water-line, the objection is of no consequence, because the lands 
there are not yet reclaimed or inhabited; and wherever they are 
reclaimed, it is not true: for there, a high water-line exists, to 
separate the private from public right."* This is verbatim our 
author's language; — the language of a lawyer, debating a ques- 
tion of title before an enlightened public, whom he thinks he 
can impose on by this wretched sophistry. The objection urged 
was, that if all was bed of the river, under what he calls high 
water-mark, then the whole country was bed of the river, be- 
cause the river overflowed the whole; and to this he answers, 
your objection is of no consequence, where the artificial bank 
has not been made, because the lands are not reclaimed or 
inhabited. But the question is not, whether I inhabit or culti- 
vate any land, but whether I own it— not what use I mean to 
make or can make of it, but whether it be mine or yours. You 
seize my property, saying it belongs to you; and when I com- 
plain of the act, you undertake to prove it yours, and think you 
have done so by asserting, that I do not " yet reclaim or inhabit 
it." Excellent logic! profound reasoning! In order, however, to 
have proved the objection to have been of no consequence, it 
would have been well to have shewn, not only that the lands on 
the Mississippi, where there are no embankments, are neither 
reclaimed nor inhabited, but that they were not susceptible of 
ownership; for I humbly apprehend it is of some consequence to 
me to shew, that I may own, though I have not improved, a 
parcel of land, which by industry I may render useful hereafter. 
The second part of his conclusion, that where the lands are re- 
claimed the objection is not true, I have already answered; and 
he himself seems not to think it very firmly established: for he 
tells us, it requires further development; and this is given to us 
in a note of two pages, closely printed, of which the object 
seems to be, to establish an analogy between the Mississippi 
and the Nile, with respect to their inundations, f Of all his 
labours, this is the one in which he has succeeded best; and it is 
the one most fatal to his argument. " The laws of the Tiber and 
the Nile, he says, are transferred to the Mississippi with perfect 

* Jeff. p. 51. f Ibid, in note. 

N 



98 

accordance." Here then we agree perfectly; and if we do not 
dispute about the laws of the Tiber and the Nile, our question 
is settled. Fortunately, I find all I wish to rely on adopted by 
my adversary, in the quotation from the Digest, which he was 
obliged to notice in our former publications. — 

" Ripa autem ita recte defmietur id quod flumen continet na- 
turalem rigorem cursus sui tenens; caeterum, si quando vel 
imbribus, vel mari, vel qua alia ratione ad tempus excrevit, ripas 
suas non mutat. Nemo denique dixit Nilum, qui increment© 
suo iEgyptum operit, ripas suas mutare vel ampliare, nam cum 
ad penetuam sui mensuram redierit, ripae alvei ejus muniendse 
sunt." — "The bank may properly be thus defined: that which 
contains the river when flowing in its natural state. * But it 
does not change its banks when it is at times swelled, either by 
rain, by the sra, or from any other cause; for, no one hath ever 
yet .mid, that the Nile, which covers Egypt by its increase, has 
thereby changed or extended its banks; but when it has retired 
to its usual height, the banks of its channel may be secured." — 
Dig. 43. 12. 5. 

Agreeing then both on our facts and our law, can we differ 
on the interpretation of it? It seems too plain to be misun- 
derstood. — 

" The bank is that which contains the water in its natural 
state." This seems pretty intelligible; but the law-giver knew 
the natural propensity of the human mind towards subtle refine- 
ments. Those who could dispute whether water was in its natu- 
ral state when solid in winter, or fluid in summer, might well 
raise a question, whether the summer or the winter state of the 
river was the natural one. Therefore he adds, " but it does not 
change its banks when it is at times swelledf by rains, by the 

* Literally, " holding the natural rigor of its course." — 

I do not adopt Mr. J's. translation of the word rigorem. From the context, 
it cannot mean "direction." The legislator is drawing a distinction between 
the river when swelled by rain, &c. and when in its natural state; the direction 
therefore of the water, could have nothing to do with the subject. 

| Mr. J. translates the word excrevit, " overflowed" it signifies, as applied to 
water, swelled, risen. Excrescere et decrescere aquadicitur, water is said to rise 
and fall; (Calvin's Die. Jur.) and the Spanish passage from the Curia Philipica, 
which has been so much commented upon, even in Mr. Jefferson's incorrect 
translation, establishes a clear distinction between the swelling of the waters, 



99 

sea, or from any other cause." Here then the quibble is fore- 
seen and detected. The natural state of a river is defined to be, 
that in which it is when neither swelled by the sea, by the rain, 
or by any other cause; and that which contains the river in this 
state, is declared to be its bank. Apply this to the lands in ques- 
tion. They are acknowledged to be uncovered during the six 
months, in which the river is not swelled by the rains and melt- 
ed snows of the upper country. They contain the river during 
that period; they are therefore on its batik. Can any thing be 
clearer than this conclusion from facts on which we agree, and 
from law which we do not dispute, and which my adversary 
himself says must decide the controversy? 

After precept, our text affords us the illustration of example; 
and an example, which we both again agree to be analogous to 
our case. " No one (says the law-giver) ever said that the Nile 
changed its banks when it overflowed." The Roman governors 
of Egypt, though they sometimes vexed the alluvial proprie- 
tors with taxes, had not made the ingenious discovery, that all 
the land covered by the inundation was the bed of the river. 
This, down to the day of Justinian, had never been said; and the 
same thing might be repeated until a legist arose, whose re- 
searches have put a stop to the " Nemo denique dixit" of future 
jurists; and has discovered, in contradiction to a text he acknow- 
ledges to be law, that to be the bed of the river, and not its bank^ 
"which is covered only when the river is at times swelled by 
rain, or some other cause" 

Before we quit Egypt,* I will state a difficulty into which my 

and the overflowing of a river, when it defines the bank to be, "the whole of 
what contains its waters, or of what its waters cover when most swelled, 
without leaving its bed or chan?iel." (Jeff p. 4S.) The words " leaving its bed and 
channel," clearly mean nothing else here, than inundation, or overflowing of the 
river; and the context evidently shews, that a river may be not only sweiled, 
but most swelled, without overflowing or transgressing its natural bounds. But 
Mr. J. either lost sight himself, or wished his renders to lose sight of so plain 
and obvious a distinction. I will not undertake to decide between these two 
alternatives. 

* In a sarcasm, of which I cannot feel the point; nor discover the wit, it is 
said,that I could not forget the flesh-pots of Egj pt on my arrival in tiiis conn- 
try, which is facetiously called the land of Canaan. I know as little of its 
flesh-pots, as the late president seems to do of its laws. But I think, that when 
Searching the Scriptures for unmeaning allusions, he might have discovered 



100 

adversary has drawn himself; and if he escapes from it, I aban- 
don my cause. 

We have seen that he acknowledges, and indeed labours to 
establish, the analogy between the Mississippi and the Nile; 
and declares, that the laws of the one, are transferred to the 
other with perfect accordance.* If this be the case, and I can 
shew that the alluvions of this very river, this Nile, so perfectly 
analogous in physical features with the Mississippi, so perfectly 
subject to the same laws, — if I can shew that the alluvions 
formed by this river, belong to the adjacent proprietor, I then 
prove, by the confession of my adversary himself, that the al- 
luvions of the Mississippi also, belong to the owner of the bank. 
Because, in both cases we have the artificial bank; in both cases 
the alluvial land must be formed between this bank and the 
river; and until reclaimed, must be annually inundated by the 
river, and form that margin, that band, which he tells us is 
essentially its bed. 

Let us try whether this law can be found. — 

Of three laws on the subject of alluvions, contained in the 
41st title of the 7th book, in the Code, two relate to the allu- 
vions of the Nile. The first directs, that those who are enriched 
by the inundation of that river, (meaning, as Gottfried tells us 
in his note on the passage, by alluvion") shall pay an increased 
tribute; and that those whose lands are washed away, shall have 
a deduction made from their taxes. 

The second is more explicit. " By this law, which we or- 
dain to be perpetual, we order, that whatever is acquired to the 
proprietor by alluvion, (either in Egypt by the Nile, or in 
the other provinces by other rivers) shall neither be sold by the 
treasury, nor demanded by any, nor separately estimated." 

Now, if the laws of the Nile are u applied to the Mississippi, 
with such perfect accordance" as he says and I agree to, what 
question is left between us? After having thus completely de- 
feated his arguments, to shew that the shore or the beach, as he 
himself repeatedly calls it, is not the bed of the river, it would 
be nugatory to examine those, by which he endeavours to esta- 

some precept to arrest him in the unholy career of first oppressing a fellow 
citizen, whom he was bound to protect, and then adding mockery to his other 
>utrages. 

* Page 52, in note 



101 

blish the property of the nation in the soil of that bed. The 
truth is, he expresses himself so indistinctly on this subject, 
that it is reallydifficult to discover his precise idea. The bed of the 
river, he says, " belongs purely and simply" to the sovereign, as 
the trustee for the nation; but then he acknowledges, " that it can 
not be his personal property, nor an object of revenue, but must 
be kept open for the free use of all the individuals of the nation." 
The latter part of this position is correct; but it is difficult to 
reconcile it with the first. If it belongs purely and simply to the 
sovereign, the individuals of the nation cannot have a right to 
use it; those terms exclude the idea of all participation of right. 
The truth is, that, as we have seen in that branch of our 
argument, the bed of the river is private property when the 
river abandons it; but the public have a right to a free use of it 
while the river continues its course. The sovereign has no pro- 
perty in it; he is only bound, as conservator of the rights of his 
subjects, to see that no one usurps more of this common use 
than he is entitled to; or disturbs any other in the use of it; or 
renders it less fit for public purpose. He exercises the same 
right over a river that he does over a highway; of which it is 
allowed the soil may be private property. 

The same thing may be said of the banks of navigable rivers, 
of which the use, for certain purposes, is in the public; and the 
proprietor cannot legally make any improvements on them 
which interfere with this use. The seven Latin pages which 
follow the 53d, contain this doctrine; it has been uniformly ad- 
mitted on our side of the question; and most of the authorities 
cited, will be found in our publications. Why this display of 
false research is made, I know not; perhaps to induce a belief, 
that I contended for some right inconsistent with the use of the 
public; perhaps only to ornament the work, by a display of 
erudition; certainly not, however, from any necessity in the 
case; for the whole doctrine has, from the beginning, been un- 
equivocally admitted. (Vide Report, Gravier v. Corporation oj 
N.Orleans y p.4<3. Examination, p. 41. Note F to the same, &c.) 
I admit then, and have always admitted, that, as riparian pro- 
prietor, I could not legally project any work into the river that 
should injure its navigation, or erect any on its banks that 
should interfere with the use of the public; and I admit also, 
that on the 15th of February, 1 808, twenty days after the presi- 



102 

dent had violently seized my property, the territorial legislature 
passed a law, making it necessary to obtain the assent of a jury, 
before any levee should be made or finished. But I deny the 
truth of Mr. Jefferson's assertion, that prior to the passage of 
this law, the assent of either magistrate or jury was necessary, 
to enable any proprietor to advance his levee as he thought fit. 
Not a single instance, from the first settlement of the coun- 
try, to the 15th of February, 1808, can be produced, of any 
such license being either asked or given; and, as far as I can 
learn, but one since that period; although thousands of acres 
have been enclosed in the first period, and hundreds in the 
latter. 

The Roman law, it is true, required that security should be 
given, that an intended work in the river, should not injure 
either public or private rights. But whatever the practice were 
in Rome, we have seen that in Louisiana no previous leave was 
asked; and I apprehend that the banks of the Tiber and the 
Nile, as well as those of the Mississippi, might be enclosed 
without any such permission, where no opposition was made. If 
the neighbours dreaded any injury, they might apply, under the 
law Mr. Jefferson has cited, for an injunction, and the proprie- 
tor could not then proceed without giving security. But we 
have express law, that if he did proceed, and no person applied 
under the interdict, it was too late, after he had finished his 
work, to complain. The very next section to those he has 
quoted, Dig. 43. 15. § 5, makes this provision: — " Etenim cu- 
randum fuit, ut eis ante opus factum caveretur, nam post, opus 
factum, persequendi hoc interdicto nulla facultas superest,etiamsi 
quid damni postea datum fuerit: sed lege Aquilia experiendum 
est." — " Moreover it was provided, that this remedy should be 
pursued prior to the finishing the work; because, after it is per- 
fected, no remedy is given by suit under this interdict, although 
an injury should be suffered by it, but the party is left to his 
action under the Aquilian* law." 

With what justice, then, is it made a ground of complaint 
against me, that I did not do that, which no other individual, 
since the first settlement of the country, had done, or was expect- 

* The Aquilian law is the 2d title of the 9th book of the Digest, and gave 
a remedy for direct injuries to slaves, cattle, or other property. 



103 

ed to do? Why should I alone ask for a license from the gover- 
nor and -hr citv cc-uncil, which he is pleased to call the proprato- 
rian license, when it was neither demanded by law, nor the 
usages of the countrv? Why should I give security, when nobody 
required it? Or how was I to "carry my case before tzuelve 
brother riparians" when I had been dispossessed twenty days 
pri';r to the passage of the law, which alone authorised me to do 
it. Yes, this vigilant guardian of the people's right, this upright 
magistrate, justifies himself for having given an order to dis- 
possess me on the 30th of November, 1807, by saying, that I 
did not pursue a measure, which was only required and pointed 
out by a law passed in February, 1808. 

Familiarized as I become, in the perusal of Mr. J.'s work, to 
extraordinary assertions, and to arguments arrayed against each 
other, I confess that I was not prepared for those which await- 
ed me at the 63d page. " It must be noted, (we are told) that 
Mr. Livingston's works xvere arrested 'by the marshal and posse 
comitatus, by an order from the secretary of state, on the 25th 
of January, 1808; and that on the 15th of the ensuing month, 
the legislature took the business into the hands of their own 
government, by passing this act. From this moment, it was in 
Mr. Livingston's power to resume his works, by obtaining per- 
mission from the legal authority. The suspension of his works, 
therefore, by the general government, was only during these 
twenty-one days." I am at a loss here which to admire most, 
the hardihood with which the writer makes this unfounded 
assertion, or the inconsistency with which, in one line, he aban- 
dons all the former arguments of his book. 

To give some colour to his assertion, that after the passage 
of the territorial law, I might have resumed my works by ob- 
taining the permission required by that law, he has recourse to 
an equivocal expression, and says that they were arrested by 
the marshal, giving the idea, that I had simply been prevented 
from proceeding to erect a nuisance; when the truth is, that he 
not only arrested my works, but drove me from the property, 
took possession of it, and solemnly declared, that he took such 
possession, because the lands belonged to the United States. 
How, in the face of this declaration, this record, this official 
act, — how can he tell the world that I viight have resumed my 
xvvrks, on obtaining the permission of a jury, according to this 



104 

law? Could the jury, or the prc.torian or proprcctorian license, 
authorise me to deprive the marshal of the possession he had 
taken? Could the territorial legislature ever take the business 
into their own hands, while the claim of the United States sub- 
sisted? Had he not under his eye, at the time he wrote this ex- 
traordinary sentence, the law which declares, that the territorial 
legislature " shall have no power over the primary disposition 
of the soil; nor to interfere with the claims of land within the 
said territory?"* had he not himself sanctioned this law? 

Could he have forgotten, that in his message to congress re- 
specting this property, he tells them, that he "had taken mea- 
sures to prevent any change in the state of things, and to keep 
the ground clear of intruders;" and desires them (the con- 
gress) to take measures for settling the title? He had driven me 
off as an intruder on the 25th of January; he calls me so in 
the title of his book; he tells congress on the 7th of March, that 
he would " keep the ground clear of intruders;" and yet he 
very gravely tells me, and tells the world, that after the 15th of 
February, I might have u resumed my works" if a jury of twelve 
riparians had given their assent. Could the jury, I again ask, 
authorise me to commit, what he calls an intrusion on the lands 
of the United States? Could they counteract the measures he 
had taken to keep me out of possession? Nay, further, he tells 
this to me, to whose respectful prayer to be reinstated in posses- 
sion, he had replied on the 20th of May, that " the case of the 
batture being now referred to Congress, on the official opinion 
of the attorney general, that the right is in the United 
States, it is the duty of the president to keep the ground 
clear of any adversary possession, until they shall have de- 
cided on it."f 

It was his duty to keep the ground clear of my possession, 
until congress should decide. Congress have not decided to 
this day; and yet, " the suspension of my works, by the gene- 
ral government, was only during these twenty-one days!!" 
If the assent of the jury was the only obstacle, why was I not 
referred to them, and not to Congress, when I petitioned to be 
put in possession? This is not all: not content, in the face of 
these declarations, to assert as a fact, that I might have resumed 
my works, in the page I have quoted, he refers again, page 76, 

* Act of the 26 March 1804, sect. 4. Laws U. S. vol. vii. p. 114. 
|Mr. Madison's letter, 20th of May, 1808.— Livingston's Corresp. p. 4 



105 

to this law; and again repeats, " that it gave me an easy mode 
of applying for permission to resume my enterprise; and that 
had I obtained a regular permission, certainly it would have been 
respected by the national executive;" — that is to say, the na- 
tional executive would have given a property, which he believed 
to belong to the United States; a property, in the state of which 
he had pledged himself to suffer " no change;" a property he had 
solemnly engaged to keep "clear of intrusion and adverse pos- 
session;" he would have given this up to the intruder, if that in- 
truder had procured the assent of twelve men, all intruders like 
himself; because they are all possessors of the " bank" which 
he has proved, to his own satisfaction, to be public property. 
Would he have done this? If he would, he deserves impeach- 
ment for his disregard of what he says is the right of the United 
States; if he would not, he deserves something worse for the 
unfounded assertion. 

Whatever may be the truth of this allegation, as to my being 
permitted to take possession of and improve the property, it is, 
as I have stated, totally inconsistent with all the acts of the 
executive, with all the former arguments he has used to support 
them; and is a most formal and unequivocal abandonment of 
the title in the United States, on which the whole proceedings 
were founded. In order to place this in a true point of view, it 
may be necessary again to call the reader's attention to the com- 
mencement of th's controversy, and the pretensions which were 
advanced by the president of the United States. 

After John Gravier had, as we have seen, been quieted in his 
possession of the premises in question, after the claim of the 
corporation either to the land or to a servitude in it had been 
rejected by the final judgment of the superior court, the coun- 
sel for the corporation set up a title in the United States, and 
moved on that ground for a new trial; this being rejected, the 
corporation stated a case to their counsel, Mr. Derbigny, and 
abandoning all title for themselves ask whether " the United 
States have not a well founded and clear title to the property, 
as being part of the public demesne?" On this case Mr !J„rbig- 
ny gives a very ingenious opinion, which concludes thus: " The 
undersigned counsel concludes from the above discussion, that 
the United States are now the real proprietors of the batture, 
accretion, or alluvion, situate in front of the suburb St. Mary, 





106' 

and that if thev claim it, the courts of justice cannot but ac- 
knowledge and confirm their title." This is dated the 21st of 
August 1807, at New Orleans. It was sent on to Washington, 
and vvas made the basis of the memorable mandate of the 30th 
of Novemb.i in the same year. — This mandate could only have 
been issued under the idea that the lands in question were the 
property of the United States; and we accordingly find that the 
instrument itself begins with reciting the title of an act made to 
enable the president to remove intruders from the lands of the 
United States, and declaring that the mandate was issued under 
that act, and that the property in question was land " ceded to 
them" 

Thus, in what preceded the act, as well as in the instrument 
which authorised it, we find it based upon an* assertion that the 
soil belonged to the United States, that it was part of their de- 
mesne, that they were not its guardians, but according to the 
expression of the counsel, its " real proprietors" After the act 
was done, we find this and this alone alleged to justify it. On 
my application to the president to be reinstated, he tells me he 
cannot do it; because the attorney general has given an opinion 
"that the right is in the United States," and this attorney general, 
when earnestly pressed to let me know what facts or documents 
were submitted to him as the case on which he gave his opinion, 
says explicitly, that he recollected no other papers than Mr. 
Derbigny's statement and opinion, and a letter from governor 
Claiborne mentioning that Mr. Moreau and Mr. Gurley con- 
curred in it, and refers me only to a coincidence in opinion with 
Mr. Dcrbigny, not to any want of the pretorian license, or of the 
assent of a riparian jury. Now I ask whether the allegation that 
I might have resumed my works, on complying with the laws of 
local police in the territory, is not a most explicit and unequi- 
vocal abandonment of the claim of property in the United States, 
so solemnly asserted, so unconstitutionally enforced? Surely the 
instance before us is a proof of that loss of judgment, which in a 
bad cause leads to self-conviction. Falsely imputed by the Latin 
adage to the act of God, it arises from that natural confusion 
which obscures the best understanding, when employed in the 
defence of error, or the obstinate justification of wrong.-— The 
mind that in a righteous cause could dictate those high senti- 
ments of patriotism and eternal justice which ushered in our 



107 

political existence, and announced it to the admiring nations oi~ 
the earth; — that very mind tempted into an act of oppression, is 
debased by a desire to defend it, and in the execution is inconr 
sistent, weak, and worse than all, persecuting and unjust. 

IV. This leads to the fourth head of defence* which supposes 
the property mine, but alleges an use of it inconsistent with the 
laws of the territory. The documents to which I have before- re- 
ferred shew how ill-founded is this charge. But suppose it true, 
what justification does it form for Mr. Jefferson's interference? 

He has shewn that if I were guilty of these attempts to drown 
and poisnn the city, there were laws not onlv to punish but re- 
strain me. The ancient and modern provisions he has cited au- 
thorise the judge on the complaint of any individual interested, 
to issue his injunction against the erection of the work. 

He has not only cited the law, but shewn that proceedings 
were had under it; he has told the public, that my work^ were 
presented by a grand jury as a nuisance. — Why was not that pre- 
sentment followed up and tried? I could then before a jury of 
my country have shewn the falsity of all these charges. If they 
were true, a verdict which could have been had in ten days, 
would have put a stop to my " aggressions" as effectually as the 
mandate of the president, and I believe every one will allow 
with rather a greater attention to the forms of law. That a pre- 
sident of the United States is required or even authorised to 
watch over the police of the rivers or the cities in the terri- 
tories; that he is to abate the nuisances in the suburbs of New; 
Orleans, and determine the proper height and extent of the 
levees in the Mississippi; that he is to guard against the accu- 
mulation of the " putrefying mass with which I was to raise up 
the foundation of my embankment," appears to me rather de- 
rogatory to his station and incompatible with his other duties; 
I had thought that they fell within the province of a high con- 
stable or a scavenger, that the first magistrate of our nation had 
certain duties assigned to him by the constitution, which he was 
to perform without interfering with the internal regulations of 
territories or states, and that when he was authorised to ask the 
opinion of the great officers of government, it was not intended 
that he should degrade them by deliberating on the propriety 

* See above, p. 34^ 



108 

of filling up a mud puddle, or pulling down a dyke in New Or- 
leans. 

Nee Deus intersit nisi dignus vindice nodus, Do not let Jupi- 
ter appear until his thunders are necessary, is a maxim, true as 
well in the common prose transactions of real life, as in the 
fictions of poetry. If my works were a nuisance, a court of quar- 
ter sessions with its sheriff, its constables and parish jury was a 
much more appropriate machinery, than the president of the 
United States assembling the council of the nation, drawing out 
its military force and lanching his thundering mandate at my 
unprotected head. 

There is a real or affected ignorance of the first principles of 
our government, which runs through all this division of Mr. 
Jefferson's argument, that is degrading to the author in the first 
hypothesis, insulting to his readers in the second. The b<-d of 
the river and its shores belong, says his argument, to the public. 
The sovereign is the guardian of this public right, and though 
the soil of the bank may belong to an individual, it is the duty 
of the sovereign to take care that this tight of private property 
yield to the public use. To this point he has cited Domat in p. 
60. But in our government who is the sovereign? The executive 
head of the federation? or the local government, the state or 
territorial sovereignty? No man who understands the first rudi- 
ments of our constitution can hesitate on these questions; again, 
of the local government which branch? Every infraction of a pub- 
lic right is a public offence, and all these are to be punished by the 
intervention of the judiciary, a branch wholly distinct in our 
government from the executive, but which Mr. Jefferson has con- 
founded with it in his principle, and has degraded by his practice. 

The territorial government, for all the purposes of domestic 
rule, is as distinct from and as independent of the general go- 
vernment, s is that of the states. By the ordinance of 1787, 
which at the period of the transaction, formed the constitution, 
of the territory of Orleans, there was a governor with executive 
power, a legislative council and house of representatives, with 
"authority to make laws in all cases for the good government 
of the district, not repugnant to the ordinance," or constitution, 
and a judiciary regularly organized. In short, a local govern- 
ment complete in all its parts, excluding as much any interfe- 
rence of the federal government, as those established in the 



109 

states. The care, then, of all these public rights in the territory 
of Orleans, belonged exclusively to the proper branch of the 
local government, and the interference of the president of the 
United States was as unconstitutional under that pretence, as 
it would have been in New York or Massachusetts; and he 
might as well order the marshal to call out his posse to destroy 
the weirs and floating nets in Hudson's river, or to cut down 
the wharves that project into its channel; he might as well, I 
repeat, order the demolition of Long Wharf, and direct the 
garrison of the castle to hold themselves in readiness for ano- 
ther Boston massacre, in case of resistance. He would be quite 
as justifiable in doing this as in doing what he has done, and he 
might use the same arguments with as much force in the one 
case as in the other. 

That the right of interference resided in the territorial, not 
in the general government, is in effect acknowledged by our au- 
thor himself, who tells us (p. 62) that " surely it is the territorial 
legislature which not only has the power but is under the urgent 
duty of providing regulations for the government of this river and 
its inhabitants," &c. — In the same page he tells us that " the gov- 
ernor and cabildo (municipal council) seem to have held this 
pretorian power in Louisiana, as well as that of demolishing 
what was unlawfully erected, and that the act of the legislature, 
without taking the power from the governor and city council, 
gives a concurrent power to the parish judge and jury," &c. — 
Here we have an express acknowledgment, nay more, a strong 
desire to establish a right in the territorial legislature to make 
laws on the subject in dispute, and in the territorial executive to 
carry them into execution — not only to prevent the erection of 
any nuisance, but to demolish it if erected. — If, then, this right 
both to legislate and execute was vested in the local government, 
what excuse has the president of the United States for his in- 
terference? In what part of the constitution does he find this 
concurrent right? What confused ideas, then, I repeat, must that 
man have of government who believes in this justification? What 
contemptuous ideas of the people to whom it is addressed must 
he entertain, who knowing its fallacy, thinks he can impose it 
on their understandings! 

But supposing my works a nuisance, and the president of the 
United States to have the power to abate it, has he done so? Is 



lie 

that the act of which I complain? neither the one nor the oth^r; — 
his order is nc: an order to demolish my works, to fill up my canal, 
to pull down my house, but to remove me from the possession of 
the land" — and this was accordingly done; the canal which was 
to poison the citv by its pestilential vapours was suffered to re- 
main, and is resorted to at this day, although nearly choked up 
for want of cleaning and repair, as a more commodious and safe 
harbour for boats than any other near the city. The levee that 
projected into the river and was to " sweep away the town and 
country in undistinguished ruin," was not demolished by this 
vigilant abater of nuisances: it was left to the operation of time 
to effect. The house which impeded the navigation of the river, 
and interfered with the public right to its banks, was transferred 
to the possession of the city of New Orleans, and for several 
years was occupied as their guard-house. So that if the- facts 
alleged in Mr. Jefferson's justification be true, and it was his 
duty to abate the nuisance, he has totally neglected it; he has 
suffered the nuisance to remain, but has dispossessed the owner 
of the land on which it was erected,— a new mode of procedure, 
and somewhat inconsistent with that eager desire to destroy 
these dangerous works, with that active zeal which could brook 
no delay to consult the forms of law. The truth is, that this idea 
of the abatement of a nuisance is a complete after-thought, never 
alluded to in the act or in any of the early stages of justification, 
suggested now by a faint hope to elude fair inquiry, and made 
of such stuff as are the arguments of a Newgate solicitor in de- 
fence of a felon caught in the meinour. — To hide the thread-bare 
weakness of this argument it is glossed over with a mock heroic 
declamation, in which pestilence and fever, death, destruction, 
ruin and inundation, frighten the reader in every line, and in 
which he has reproached me with being afraid of submitting my 
cause to a jury. Mr. Jefferson reproaches me with this! — He 
whose constant care has been by demurrers, by pleas to the 
jurisdiction, by every device that chicane could invent to avoid 
this species of investigation; he, whose steady phalanx of friends 
in congress defeated every attempt to submit the cause to any 
species of trial! — He utters this reproach to me! who for five 
years have been constantly engaged in the painful unavailing 
task of solicitation for this or any other trial. Such an insulting 
disregard to propriety and truth, forces me from the modera- 



Ill 

tion with which I wished, injured as I have been, to conduct 
the controversy; and thf dose of the passage now under review 
is calculated to inspire sentiments not only of indignation, but 
horror! 

My life had been more than once threatened for exercising 
my legal rights. Emboldened by the idea of executive protec- 
tion, excesses were committed in my case, which the love of 
order natural to the people of Louisiana had in every other in- 
stance avoided. The good sense of the people had got the better 
of this temporary frenzv; the necessity of submitting to the 
laws was perceived and acknowledged. Mr. Jefferson's friends 
must have informed him that these ideas began to prevail, and 
that if bv a decree of the cou»t, or in any other legal manner, I 
should recover my possession, there were now no hopes that I 
should bt deprived of it bv a mob. This was a prospect too 
mortifying to be endured, the people must be excited — the spirit 
of 1807 must be revived, and though the danger never existed, 
though if i' existed it was long past, it must be painted in glow- 
ing colours, the vengeance of popular fury must be directed at 
my head; an expr-ssion in one of my letters, which it was 
thought would render me odious to the people, must be culled 
with malignant care — their conduct in opposing the laws must 
be spoken of with complacency, while mine in daring to com- 
plain is held up to the severest animadversions; and when by 
these arts a proper spirit is supposed to have been excited, they 
must be plainly told, that though their laws will not allow them 
to burn me alive, it is a punishment mild enough for my of- 
fence!! 

u What was to be done," says Mr. J., " with such an aggres- 
sor? Shall we answer in the words of the imperial edict? — Let 
him be consumed with flames in that spot in which he vio- 
lated the reverence of antiquity and the safety of the empire, let 
his accessaries and accomplices be cut off" &c. u Our horror," he 
adds, u is not the less because our laws are more lenient." I ought 
perhaps only to laugh at the folly of this rhapsody, and remind 
the author that the flames were prepared by the Roman law for 
the destroyers of the dykes of the Nil*-, not for the ne who 
erected them, — I ought to ask him good-naturedly to look at 
the title of his own law,* and determine which of us deserved 

* De Nili aggeribus non rwrnpendii. 



112 

the stake. But I confess that the mirth naturally excited by the 
absurdity, is somewhat repressed by horror at the wickedness 
of this attempt. 

On these facts and on this law, the late president says " We 
were called and repeatedly and urgently called to decide." As 
I do not suppose a republican magistrate could assume the ridi- 
culous expression of royalty, by speaking in the plural number, 
I must suppose that he has fallen into it by reflecting on the 
various capacities in which he was thus urgently called on to act. 
As legislator, he was to make a new law to fit the circum- 
stances of the case; as judge, he was to applv it to those facts 
which as a juror he was to ascertain, and to pronounce that 
sentence which, as executive officer, he was himself to carry 
into effect; as president, he was to reclaim the lands of the 
United States; as commander in chief of the armies, a suffi- 
cient military force was to be prepared to over-awe opposition; 
as mayor of the city of New Orleans, he was to enforce its 
rights against the decrees of the court; as high constable, he 
was to abate nuisances, and as street commissioner to re- 
move the putrefying mass, that threatened the health of the 
city. We ought not to be astonished that an officer who thought 
himself obliged to act in all these capacities, should speak as if 
he were more than one, nor that having in this instance invested 
himself with all the characteristics of despotism, he should have 
assumed its style. 

Having established what he calls the fact, and the law of the 
case, he proceeds to shew, that he had applied the proper re- 
medies. These he classes under three heads: 

1. "The right to abate nuisances." 

2. " The right to resume by force, property which had been 
unlawfully taken." 

3. " The act of Congress, of the 3d of March, 1807."* 

1. I have anticipated the argument on the first head, and 
have shewn that there was no nuisance; that if there were, a 
competent local authority was provided to abate it; that the 
president of the United States, if he acted on this ground, acted 
unconstitutionally, and assumed the powers of inferior officers, 
in a manner derogatory to his dignity, and contrary to his duty; 
and finally that if it were a nuisance, and it were his duty to 
abate it, he did not perform this duty, but left the nuisance in 

* 8 Laws U. S. p. 317. 



113 

statu quo; and that the act complained of is not destroying the 
works, but depriving me of my possession. 

2. The late president says, *' every man has, by natural laiv, a 
right to retakr by force his own property, taken from him by force 
or fraud" But as he acknowledges, that both by the civil and the 
common law, this right is restrained, 1 cannot see precisely 
the object of introducing it, any more than I can the disserta- 
tion on the right of recaption of personal chattels. The civil law 
and the common law, we agree, do not permit any individual to 
resume by force the possession of lands, although he may be 
the true owner. But this does not apply, it is said, to govern- 
ments. Mr. Jefferson " believes, that no nation has ever yet re- 
strained itself in the exercise of this right." He asserts the 
example of England as proof of this principle; but candidly 
allows, that he knows nothing of the Roman laws on the subject; 
which he sa s are, " immaterial, but inasmuch as they may be 
the law of the case in Louisiana." I am not sure that I under- 
stand this phrase. The late president's style is sometimes 
beyond my comprehension. I believe, however, he means to 
say, that the Roman law is material only, so far as it may be the 
rule to govern the case in Louisiana. Should this be what he 
means, I would ask, if it be the " lazv of the case" in Louisiana, 
is it not the only lw material'''' rule? The case arose in Louisiana; 
and when I attempted to call Mr. Jefferson legally to account 
for his conduct in Virginia, he told me that I could sue only in 
Louisiana; that the rule which governs the case in Louisiana, 
must govern it every where, and be the only rule. The sentence 
I am considering, will amount then to this: The Roman law is 
immaterial, but inasmuch as it is the only material rule. Why this 
obscurity of expression? Why this confusion of ideas? Why all 
this from the pen of Jefferson? I have before hinted at the cause; 
it is no longer drawn in defence of truih; it is prostituted to the 
purposes of oppression! — it is employed in defence of error! The 
law of this country then, is the only object of enquiry. By be- 
coming a territory of the United States, our laws were not chang- 
ed; and by the terms of their compact with us, no man could be 
deprived of his property but "by the judgment of his peers, or the 
laxv of the land."* That law was unchanged by the transfer of 

* Ordinance, 1787, transferred to the territory of Orleans, act 2d March, 
1805. 

P 



114 

the country, was expressly preserved by the law of the 2d of 
March, 1788, and still remained as it was under the dominion 
of Spain. The United States, in all cases not legally provided 
for by their own laws, were, as to their property, bound by those 
of the territory; for the recovery of their debts, they were 
obliged to pursue the forms used in the territorial courts. The 
mode of enforcing payment by execution, was in their case, as 
in that of individuals, restricted by the local regulations. 

So with respect to lands: the United States had the dominion 
of all those which had not been legally granted. The territorial 
legislature could neither tax nor dispose of them; but all ques- 
tions, relative either to their conveyance or possession, were 
subject to the decision of the laws relative to other real pro- 
perty. What were these laws on the point in question? Could 
either an individual or the government take by force, a posses- 
sion of which either had been deprived, even by force or fraud? 
They could not. By the civil law, every entry by force was 
prohibited; and the deforcior forfeited, by his illegal violence, 
any title he might have had; and an action was provided, by 
which any one ousted by force, could recover his possession, 
even if he had no title and the disseisor had one. This part of 
the Roman code, made a part of the Spanish law, which govern- 
ed, and still governs, the state of Louisiana; and its provisions, 
contrary to Mr. J.'s assertion, expressly extended to the go- 
vernment. 

1. The action for the recovery of possession, forcibly taken, 
is called the interdict, wide vi; of which the description from 
the Roman law is, 



Hoc interdictum proponitur ei, 
qui vi dejectus est: ctenim fuit 
aequissimum, vi dejecto subve- 
nire, propter quod ad recuperan- 
dam possessionem interdictum 
hoc proponitur — Dig- 43. 16. 1. 

Ne quid autem per vim admit- 
t at ur, etiam legibus Juliis* pros- 



This action is given to him who 
is expelled by force; for justice 
requires, that we should aid those 
who are thus ejected; wherefore, 
for the recovery of their posses- 
sion, this action is given. 

That nothing should be permit- 
ted to be taken by force is provid- 



* This expression shews, that the civil law, respecting forcible entries, is 
at least as old as Julius Cssar. Julie leges, as we learn from the learned God- 
frey, was the term employed to distinguish the laws enacted by the Comitia 
in the last years of the republic. — " Nam comitia, quae erant prxcipua reipub 



115 

picitur publicorumct privatorum,|ed for, as well by the Julian laws, 
nee nonet constitutionibus princi- as by the imperial constitutions. 
pum. — ibid. § 2. r 

And see the whole of this title, passim, and the 8 Cod. 4. unde 
vi. These provisions are adopted and enforced by the laws of 
Spain. 

Interdictum verd recuperandael The action for recovering "pos- 
possessionis competit possessori session," lies for him who has been 
per vim dejecto a sua possessionel driven from the possession of his 
rei immobilis pro ea recuperanda, real estate, by force, for the reco- 
et vocatur unde vi. Textus est in very thereof; and it is called the 
lege 1. vers 1. Dig. Devietvi arm: Interdictum unde vi. The text is 
cujus verba sunt: Hoc int erdic-' found in the Digest De vi et vi arm. 

turn, life et natura, virtus et/. 1. § 1 the words of which are, 

effectus hujus interdicti est, quodj" This interdict" &c. isfc. and the 
spoliatus restituatur in suam pos- j nature, force and effect of this ac- 
sessionem, et quod adversarius tion is, that the person ejected be 
condemnetur in omni damno et! restored to his possession; and 
interesse quod spoliatus pr3eten- ( that the defendant be condemned 
derit, etiam si excedat valorem : to pay all the damages he hath 
ipsius rei." — Ant. Gom. in leges ! suffered, although they should ex- 
Tauri, p. 507. jceed the value of the property. 

2. The plea of title, is no bar to the recovery under this 
action. 



Item adde, quod agenti inter- 
dicto unde vi non obstat exce/itio 
dorninii; im6 ante omnia spoliatus 
est restituendus: unde si reus con- 
ventus excipiat de dominio, et 
offerat se incontinenti probare, 
non est audiendus; sed probata 
violentia. statim debet fieri resti- 
tutio. — Ant. Gom. de leg. Tauri, 
p. 508. 



And moreover the plea of title 
is no bar in the action unde vi. 
But the person ousted, is first of 
all to be restored to his posses- 
sion: and although the defendant 
plead title, and offer instantly to 
prove it, he shall not be heard; 
but the force being proved, restitu- 
tion must be immediately award- 
ed. 



licae liberse insignia, sub Julio habita sunt, a quo et a ceteris magistratibus 
leges varix veteri rilu rogatae sunt, et ab ejus nomine qusedam Ju[i& dictae 
sunt." Godf. Hist. Jur. Chron. p. 5. — Some other law, of the same import, 
must have existed at a much earlier period; for it is difficult to conceive a 
State of society, in which this pretended natural right could exist. It was, pro- 
bably, the laws of the twelve tables. Mr. J. is positive (p. 66.) they contained 
no such provision; he forgets that we have only a few fragments of those 
celebrated laws; but he is quite as well acquainted witii the laws he has not 
read, as he appears to be with those which he has. 



116 

3. The person using force to recover his possession, forfeits 
his title, if any he had, to the property. 



Si invasor sit dominus, amittat 
dominium illius rei, et applicetur 
expulso; si vero non sit dominus, 
tenetur ei reddere possessionem 
ablatam, et insuper sestimalionem 
ejusdem rei. 

Gom. in leg. Tauri, p. 513. 

Si algun entrare 6 tomare por 
fuerza alguna cosa que otro tenga 
en :-u poder y en paz, si el forza- 
dor algun derecho ai havia, pierda- 
lo; y si derecho ai no havia, entre- 
guelo con otro tanto de Io suyo, y 
con la valia, a aquel a quien la 
fuerzo: mas si alguno entiende 
que ha derecho en alguna cosa, 
que otro tiene, en juro y en paz 
demandelo. 

Rec. de Castilla L: 4 tit 13. 1. 1. 



If the deforcior be the owner, 
he shall lose the ownership of the 
property, and it shall be vested in 
the person expelled; if he be not 
the owner, he shall be held to re- 
store the possession he has taken, 
and moreover, the estimated value 
of the property. 

If any one shall enter or take by 
force, any thing which another 
possesses in peace, if the despoil- 
er had any right, let him lose it; 
if he had no right, let him deliver 
it, with other like property of his 
own, or the value thereof, to him 
whom he hath despoiled; but if 
any one supposeth he hath a right 
to what is possessed by law, and 
in peace, let him demand it by 
taw. 



4, By the Spanish laws the government, and all its officers, 
are as much restrained from using force as an individual. 



Defendemos que ningun alcal-l 
de, nijuez, ni persona privada no 
sean osados de despojar de su po- ( 
sesion a persona alguna sin pri-i 
meramente ser llamado, y oido jr 
vencido por derecho, y si pare- 
friere carta nuestra por donde raan- 
daremos dar la posesion que uno 
tenga a otro, y tal carta fuera sin 
audiencia, que sea *obedescida y 
no cumplida; y si por las tales car- 
tas o alvalaes algunos fueron des- 
pojados de sus bienes por un 
alcalde, que los otros alcaldes de 



We forbid any alcalde or judge, 
or any other person, to be so dar- 
ing as to despoil any one of his 
possession, without his being first 
cited, and heard, and adjudg- 
ed according to law; and should 
any royal mandate from us be 
produced, by which we may com- 
mand, that the possession held by 
one should be delivered to ano- 
ther, and such mandate should be 
granted without hearing the 
parties, let it be disobeyed* and 
not executed; and if by any such 



•The original is as I have transcribed it, obedescida, which signifies obeyed. 
This would be so directly at variance with the context, as to make complete 
nonsense. I have therefore supposed there must be an error of the press, and 
that it ought to be desobedescida, "disobeyed" as I have translated it. The rea- 
der, however, may judge for himself. I point out what I suppose to be the 
mistake. 



117 



la ciudad, o de donde acaesciere, 
restituyan a la parte despojada 
hasta tercero dia, y pasado el ter- 
cero dia, que lo restituyan los ofici- 
ales del consejo. Recop. de Cas- 
tilla 1. 4. tit. 13. 1. 2. 



mandate any person should be de- 
prived of bis estate, by an alcalde, 
let the other alcaldes of the city 
where it shall happen, restore the 
party ousted, until the third day; 
after the third day, let him be re- 
stored by the officers of the coun- 
cil. 

The same provision is repeated and enforced by the seventh 
law of the same title and book, and by the first, second, third 
and fourth laws of the eighteenth title; the first of which directs, 
that any patents or orders, which may be given contrary to 
right or to law, or to the custom of courts, shall not be com- 
plied with: although they contain a clause directing them to be 
obeyed, notwithstanding any custom, law or ordinance. 

" Porque acaesce que por importunlciad de algunos o en otra 
mantra nos otargaremos y libraremos algunas cartas o alvalaes 
contr a derecho o contra ley o fuero usado: porende manda- 
mos que las tales cartas o alvalaes no valan ni scan cumplidas 
aunque contengan que se cumplan no embargante qualquier 
fuero o ley o ordenamento o otras qualquier clausulas deroga- 
torias." — " Whereas it may happen, that through importunity or 
otherwise, we might grant letters or mandates contrary to law, 
or to some established custom; we, therefore, order that all such 
letters or mandates be not executed, although they should 
contain a clause of nonobstante statitto vel lege, or any other 
derogatory clause." 

The 31st law, tit. 18, of the third Partidas, asserts the same 
principle; declares all mandates of the king, given against natural 
right, to be void; and gives as an instance, the taking the property 
of any one, unless he hadforfeited it by conviction for somecrime. 
If it were necessary to make the research, I believe similar provi- 
sions may be found in the constitutions of every power in mo- 
dern Europe. In France, we have seen, in a former part of this 
discussion, that the king, when he thought proper to claim allu- 
vions as the property of the nation, did not deem himself autho- 
rised at once to seize on them, and oust the possessors. He or- 
dered surveys to be taken, researches to be made, and gave the 
claimants an opportunity of making that successful appeal to the 
laws, which secured their property against the pretensions of 
the crown. It is not true then, as Mr. Jefferson believes, that 
no nation has ever yet restrained itself in the exercise of this 



118 

natural right. They have not all had that horror of the "cavils 
of litigation ," that seems to have possessed the president of the 
United States; and while the most absolute sovereigns in Eu- 
rope are seen to submit their claims to the decision of the laws, 
the first magistrate of a free republic, has the honor of invent- 
ing the practice of taking by force, and of applying to this pro- 
ceeding the pithy expression, of seizing, at " short hand"* 
all that he chuses to call the property of the public. 

But the example of England is cited; and if it were against 
me, what would be the consequence? Does Mr. J. think he can 
assume the powers, as easily as he does the style of the king? But 
it is not against me; the laws of England are as far from making 
the king both judge and party, as those of France and Spain. 

It is acknowledged, that " there are cases of particular cir- 
cumstance^ when the sovereign must institute a previous in- 
quest;" "but in general cases, as the present, he enters at once 
on what belongs to the nation." " This (it is confidently assert- 
ed) is the law of England." I undertake, on the contrary, 
to shew, most explicitly, that this is not the law of England — 
that it is the very reverse; that, in general cases, the king cannot 
enter without an office found, or a judgment on an information 
for intrusion; and that it is only in cases of particular circum- 
stance, as Mr. Jefferson calls them, (when there is evidence tanta- 
mount to the inquest) that these proceedings are dispensed with. 

I should be surprised to hear this position from any other 
lawyer in the United States; but the review of this work has 
taught me a difficult lesson; I now wonder at nothing I find 
there. Let me go on then calmly, with the dull work of refuta- 
tion. The constitution of England, is the most unfortunate ex- 
ample to which he could have referred. Though, in theory, the 
king is supposed incapable of committing a private wrong, in 
practice he is not permitted to do it. A remedy is provided for 
every aggression of the subjects' right. The king cannot enter, 
without an inquest found, or a judgment on an information; or 
some other matter of record, by which a prima facie title is ap- 
parent; and even after this, the claimant may either traverse the 

• Mr. J. not being able to find in the phraseology of our own law, any ex- 
pression sufficiently descriptive of his outrageous proceeding, has borrowed, it 
seems, this technical term from the Scotch lawyers, who apply it sometimes, 
to distress for rent, impounding of cattle damage feasant, and other remedies of 
a similar kind, authorized, but regulated by law, so as not to produce oppression 
or injustice in practice- " Poinding at short handhv house-mail," Kaims' Law 
Tracts, 159- 



119 

inquest, or have a monstrans de droit, on which he may contro- 
vert the title of the king; and should he shew a better in him- 
self, he has a judgment of the court, which instantly and by the 
very act, puts the king out of possession. This is so much the 
A B C of the profession, that it would be a vain parade of re- 
search, were I to cite all the authorities that could be produced. 
A page or two of Blacksione will settle the question. — - 

3d Blacks. 257. 259. — " The methods of redressing such in- 
juries as the crown may receive from the subject are, first, such 
common law actions, as are consistent with the royal preroga- 
tive," &c &c. 

Second, the inquisition or inquest of office, which is an in- 
quiry made by the king's officers, his sheriff, coroner, or eschea- 
tor, virtute officii; or by writ to them sent for that purpose; or 
by commissioners specially appointed, concerning any matter 
that entitles the king to the possession of lands or tenements, 
goods or chattels," &c. — " These inquests of office were devised 
by law, as an authentic means to give the king his right by 
solemn matter of record; without which, he, in general, can 
neither take nor part from any thing. For it is a part of 
the liberties of England, that the king may not enter upon 9 
or seize any man's possessions upon hare surmises, without 

THE INTERVENTION OF A JURY." 

There are some exceptions to this rule; one is created by 
statute in the tyrannical reign of Henry the Eighth; which 
enacts, that the estate of a person attainted of high treason, shall 
be vested in the crown, without inquisition. 

Another is derived from the operation of law, which gives 
the crown the same, but no greater rights on this subject than 
are enjoyed by a subject, if the possession in law is cast upon 
him; as where he takes, by descent, in remainder or reverter. 
Stamf. 54. 4 Co. 58. Sav. 7. 9 Co. 95. 6. — For in all cases 
where a common person is put to his action, there, even after an 
office found in his favour, the king is put to his scire facias; for 
an office entitles the king to an action only, and not to an entry; 
but where a common person may enter or seize, there an office, 
without a scire facias shall suffice for the king. — 9 Co. 266. 
Stamf. 55. a. 

The last case in which the finding of the inquest is dispensed 
with, is where the king's title already appears by record; in 
which case it is generally unnecessary. — Stamf. 56. 



120 

But even in the case of an inquest found, it is not conclusive. 
The government of England has thought it not derogatory to 
its dignity, in favour of the subject's right of property, further 
" to hind up its own hands in the manacles and cavils of litiga- 
tion;" (for it is in these terms a republican president expresses 
himself to designate an appeal to the laws.) The subject con- 
tending with his sovereign, may still sturdily refuse to yield. 
The law has provided him with more than one resource. He 
may, in most cases, traverse the fact found by the inquest; and 
has, in all cases, either his monstrans de droit, or his petition of 
right. The first, when he does not deny the facts found; the 
last, where he relies on new matter in support of his title. 

Third. The third mode pointed out by the law of England, 
for the redress of injuries to the crown, by taking possession of 
public lands, is that of information " for intrusion, for any tres- 
pass committed on the lands of the crown; as by entering 
thereon -without title, holding over after a lease is determined, 
taking the profits, cutting down timber, or the like." 3 Bl. Com. 
261. — In all these cases, the party claiming a title, has a full 
and fair opportunity of shewing it, of examining that of the 
crown, and submitting both to the decision of a jury. Is it not 
extraordinary then, that one so well versed in the laws of Eng- 
land as Mr. Jefferson, should publish so deliberate, so malicious 
a libel on its jurisprudence? — that he should cite the English 
government as one which disdained the forms of law, and seiz- 
ed, at short hand, whatever it chose to call its own? as one 
under which the subject was liable to be dispossessed, whenever 
a tyrannical or necessitous king should claim his property as 
part of the domain? and that he should assimilate the powers of 
the crown, to those which he has illegally exercised? The bold- 
ness of the attempt excites astonishment; but it was necessary 
to attempt it. The constitution of the country, in which this 
daring violation of private right was committed,* assured to 
the inhabitants, " the benefit of the trial by jury," "and of judi- 
cial proceedings according to the course of the common law;" 
and solemnly declared, that '* no man should be deprived of his 
liberty or property, but by the judgment of his peers, or the 
law of the land." Similar provisions are found in the great 
charters, which secure the English subject against the encroach- 
ments of the crown. It was necessary, therefore, to persuade the 

* Ordinance of 1788. 



121 

American citizen, that these sacred provisions were nugatory in 
England, before he could calmly see them violated in America. 

The contrast, too, between a monarch whom he ha desig- 
nate I as a tyrant, bound up by the manacles of litigation — 
unable to seize his own at short hand — forced to respect the 
po.->y sions of his subjects — affording them every means of 
asserting their rights, and that of the magistrate of a free 
people — playing the Tartuffe of liberty — adoring it in profes- 
sion but in practice violating its most sacred principles — seiz- 
ingon the property of a citizen without inquest, or the interven- 
tion of a jury— denying him every species of trial, and insulting 
him with impunity, when he dared to appeal to the public — this 
contrast was too striking to be endured; and the only way of 
removing it was, to bring our ideas of the British government, 
on the level to which his practice had degraded our own. 

It is not true, then, that either in England or the more ener- 
getic governments which lately existed in the rest of Europe, 
the crown was permitted to seize property which belonged to 
it, without the intervention of those forms prescribed by lav/ to 
protect private possessions from violence. The Spanish law, 
which is cited as that which persuaded the president that this 
power was vested in the former government of Louisiana, cer- 
tainly is not calculated to give this idea. It directs that if any 
building injurious to navigation be made in rivers, or on their 
banks, they must be destroyed. This, clearly, is no proof that the 
government had a right even to put down the nuisance without 
a trial, much less to seize property that they claimed as their 
own. But the example of the Spanish governor and cabildo, it is 
said, was a sufficient excuse. This is a curious justification. One 
of the first Spanish governors, soon after his arrival, led out 
eight or ten of the principal inhabitants of the country, and shot 
them with as little ceremony as Mr. Jefferson seized upon my 
property; but he, surely, is not to learn that the cabildo was the 
city council, although the governor presided in it; and if they, 
legally or illegally, issued orders to destroy buildings which had 
been erected on Gravier's land, under an allegation that they 
were nuisances, does this give the same right to the president 
of the United States? The city council of New Orleans can 
make by-laws and orders for regulating the streets of the city, 
the same power was exercised by the cabildo; does this give a 
right to the president of the United States to participate in these 



122 

local regulations? But again I repeat, the Spanish government 
never took posession of the batiure at short hand, as of property- 
belonging to itself; Mr. Jefferson, acting in the name of the 
United States, did. There was, therefore, no example to justify 
him, and I have, I trust, shewn that if there had, it would have 
been an unlawful one. 

If, then, neither the limited monarchy of England, nor the 
more absolute ones of France and Spain permitted the sovereign 
to be his own judge; if the subjects of those powers held their 
possessions under the guarantee of the laws, and not at the will 
of the prince, can this power be lodged in the first magistrate 
of a free people? can that people hold their property by so pre- 
carious a tenure? If so, by whatever name the government may 
bt called, it is not free. It is of the essence of such a govern- 
mtnt, to have the three great departments distinct; so monstrous 
a confusion of the legislative with the executive and judicial 
powers, must forever forfeit all title to the honourable appella- 
tion of -a free republic. Is the constitution of our country liable 
to this reproach? Or are those who have administered it charge- 
able with that of having violated its principles? These are serious 
questions, and naturally come to be considered in examining what 
Mr. Jefferson calls his " third and coJiclusive remedy." This is 
the law of congress entitled " An act to prevent settlements being 
" made on lands ceded to the United States, until authorised by 
" laiv."* Whatever other remedies Mr. J. had, he must justify 
himself under this, for it is the only one he has pursued; he 
took away my property under this act, and if I can shew: 
1st. That my case does not come within it; 2d. That its direc- 
tions were not pursued; or 3dly, that it is an unconstitutional 
act, I take away from the president every ground of defence. 

I. This is not a case coming rvithin either the letter or the 
spirit of the act. The slightest recurrence to its provisions, must 
shew that its intent was only to enable the president to guard 
against the intrusion of a class of men known in the United 
States by the appellation of squatters; that its provisions con- 
template uncultivated land, where, from the remoteness of the 
situation, a sufficient number of settlers might be assembled to 
resist the ordinary process of law; but that it could not have 
entered into the mind of a single man who concurred in passing 

• 8 Laws U. S. p. 317. 



123 

this act, that it was to give the president the means of depriving 
an individual of a possession, which perha might he the only 
evidence of his title, in a populous cit* where the claims >f the 
public could easily be ascertained by law, and if well founded 
could as easily be enforced. Examine the whole of the act with 
this view, and it will be found that its provisions and expres- 
sions strongly impress these general ideas. — Settlements and 
taking possession are forbidden, as are surveys and designating 
boundaries " by marking trees" or otherwise. The second sec- 
tion allows the actual settler to obtain permission to continue 
on the u tract or tracts of land," he may occupy, " not exceed- 
ing three hundred acres" — and it is from the u lands aforesaid" 
that is, from such tract or tracts, that the president is autho- 
rised to remove the settler. 

All these expressions clearly indicate the species of property, 
the description of lands, which the legislature intended to affect 
by this law — and shew that its spirit is violated by applying it 
to city lots, of which the possession, after a long course of ex- 
pensive litigation, had been assured to an individual by the de- 
cree of a competent court. 

The property in question comes as little within the letter, as 
it does within the spirit f the law. 

The first section, which is said (p. 69) to be " my part of the 
act", enacts "That if any person or persons shall, after the 
"passing of this act, take possession of, or make a settlement 
" on any lands ceded or secured to the United States, bv any 
" treaty made with a foreign nation, or by a cession from any 
" state to the United States, which lands shall not have been 
" previously sold, ceded, or leased by the United States, or the 
"claim to which lands, by such person or persons, shall not 
"have been previously recognised and confirmed by the United 
" States: or if any person or persons shall cause such lands to 
" be thus occupied, taken possession of, or settled; or shall sur- 
" vey or attempt to survey, or cause to be surveyed, any such 
" lands; or designate any boundaries thereon, by marking trees, 
" or otherwise, until thereto duly authorised bylaw; such of- 
fender or offenders, shall forfeit all his or their right, title, and 
" claim, if any he hath, or they have, of whatsoever nature or 
" kind the same shall or may be, to the lands aforesaid, which 
"he or they shall have tak< n possession of, or settled or caused 
"to be occupied, taken possession of, or settled, or which he or 



124 

" they shall have surveyed or attempt to survey, or cause* to be 
" sufve eel. o - the boundaries thereof he or they shall have de- 
" sign ate d, or cause] to be designated, by marking trees or other- 
"wise. And it shall moreover be lawful for the president of the 
" United States, to direct the marshal, or officer acting as mar- 
" shal, in the manner hereinafter directed, and also to take such 
a other measures, and to employ such military force as he may 
" judge necessary and proper to remove from lands ceded or 
" secured to the United States, by treaty, or cession as aforesaid, 
" any person or persons who shall hereafter take possession of 
" the same, or make, or attempt to make a settlement thereon, 
" until thereunto authorised by law. And every right, title, or 
" claim, forfeited under this act, shall be taken and deemed to 
" be vested in the United States, without any other or further 
"proceedings: Provided, thai nothing herem contained shall be 
" construed to affect the right, title, or claim, of any person to 
"lands in the territories of Orleans and Louisiana, before the 
" board of commissioners established by the act, entitled " An 
" act for ascertaining and adjusting the titles and claims to land 
" within the territory of Orleans and the district of Louisiana," 
" shall have made their reports, and the decision of congress 
" been had thereon." 

To bring the premises within the words of this section, they 
must be: 

First, lands ceded or secured to the United States. 

Secondly, possession must be taken after the passage of the act 
(3d March 1807). But: 

1st, These lands were not ceded or secured to the United 
States. The treaty of the 30th of April, 1803, which cedes Loui- 
siana to the United States, gives them the sovereignty of the 
country, and all public lots, buildings, squares and vacant lands,\ 

* It is so printed in the statute book, attempt — cause; from the context, how- 
ever, it seems it should be attempted — caused. 

f Same remark as in the preceding note. 

\ See the case of The Commonwealth v. M'Kissick et al 4 Dallas 292, where 
these terms " vacant land'' are adjudged not to include property in a city. 

Lands granted by the British government before the revolution and forfeit- 
ed to Virginia, are not "vacant, wuste, or unappropriated lands," and could 
not be located as such by a person having a right to locate lands under the 
general land law of that state. Grace v. Trustees of the University, Court of Ap- 
peals, Kentucky. 



125 

but by the third article expressly provides, that the inhabitants 
shall be protected in their property. — If this land, then, was an 
inherent part of that which had, long prior to the treaty, been 
granted to those under whom Gravier claimed, they were not 
included in the cession to the United States, and were excepted 
out of it by the third article. That it was, by the very law of its 
existence as alluvial property, an inherent part of the original 
grant, I think has been sufficiently shewn. It was then not " ceded 
or secured to the United States" but on the contrary reserved 
for, and secured to the proprietors of the original grant. 

And 2dly, These were not lands of which the possession was 
taken after the passage of the act. 

It has been shewn from the nature of the property, that a 
constructive possession was all that could have been had in it, 
until its increase rendered it an object for improvement. That 
from that period, evident and notorious acts of ownership were 
exercised; public sales of parts thereof made fourteen years be- 
fore the passage of the law, and an actual occupation, a pedis pos- 
session taken of other parts more than three years before. These 
acts, also, were made known to Mr. J. not only by publications 
but by record. The judgment of the superior court, whatever may 
be its effect as to the title of the United States, ought certainly to 
have been, at least, presumptive evidence to the president, of the 
facts asserted in it; he ought in common decency, in common 
justice to the characters of the judges, to have supposed that 
they would not have asserted on their oaths of office, that as 
fact, which was not proven before them, — and to have had at 
least respect enough for men of his own choice, to have sup- 
posed them capable of knowing when a fact was proved or not. 

That judgment rendered by men of abilities and integrity, 
rendered after two years most laborious hearing of the cause, 
on the spot where the facts were controverted, against the popu- 
lar side of the question, in defiance of clamour and riot; that 
judgment quieted the plaintiff in his enjoyment of the property, 
but did not give him a new possession. It referred to that which 
he had always enjoyed, and made perpetual an injunction against 
disturbing him, which had been granted at the beginning of the 
suit, two years before the passage of the law. 

But because I took possession by virtue of my purchase from 
Gravier, after the passage of the law, my possession is not tc 



126 

be protected. He could not have dispossessed Gravier, because 
his possession was anterior, but he may dispossess me who pur- 
chased that possession, because mine was posterior to it. What 
monstrous doctrine! Am I eternally obliged to be repeating the 
first principles of law, to one of the first lawyers in the United 
States? 

That the vendee has all the rights of the vendor; that the 
possession of the one, is continued to the other, so as to effect 
even a tide b) prescription, is now for the first time called in 
doubt. It is true in all laws and particularly well settled in the 
civil — " Quotiens autem dominium transfertur; ad eum, qui 
accipif, cale transfertur, quale fuit apud eum qui tradit." Dig, 
de adq. rer. Dom. 1. 20. s. 1. The only question is, what posses- 
sion had the person from whom I purchased? I say a complete 
one, a possession in fact, a possession inlaw, a possession shewn 
by record, and a just possession. 

" Juste possidet qui auctore praetore possidet," Dig. de adquir. 
vel arnitt. possess. 1. 11. "He is a just possessor vvho is in by 
the authority of the judge." — Gravier was in by the authority of 
the judge, by virtue of the injunction issued in April 1806, more 
than a year before the passage of the law. 

Gravier's possession was my possession, it was zju»t one and 
was long anterior to the passage of the law. 

If this were not true, every purchaser of property in this 
country, since the 3d of March 1807, would be liable to be dis- 
possessed by the words of this act, although the seller had been 
in possession from time immemorial. It is clear then, that the act 
contemplated a new, not a continued possession, although the pos- 
sessor might be changed. Mr. Jefferson, (p. 69), affects to think 
that my counsel contend for what he calls a remitter of posses- 
sion under the judgment, and says he will shew the judgment to 
be void, as being given by incompetent judges. In the first 
place neither my counsel nor myself, have contended for any 
tbing like a remitter. We had said what I have just repeated, 
that my possession is a continuance of Gravier's, that the pos- 
session is entire, though the person of the possessor is changed, 
and we rely on the judgment only as evidence of the fact of 
possession, not as. giving us any right against those who were 
no parties to it. Sensible of the weakness of his argument on 



127 

this point, Mr. Jefferson is reduced to a necessity which^would 
deserve our pity, ii the expedient he adopts to relieve it, did 
not excite feelings of a different description. 

" If (says he) the judgment of the Court had been a remitter," 
that is, if my possession should be deemed a continuation of Gra- 
vier's, and of course not subsequent to the law, "then I should 
have observed that the order had been executed on a person not 
comprehended in it, for it was expressly restrained to possessions 
taken after the 3d of March, 1807. In that case the marshal must 
justify himself not under the order, but in virtue of his per- 
sonal right to remove a nuisance." What? — The whole of this 
transaction, then, is a trap for the poor marshal: you have word- 
ed your order in such equivocal terms, that though he should 
do, what you acknowledge it was your intention he should do — 
your order should be no justification for him; acting under the 
mandate of the President, that mandate is not to be his warrant, 
but he is to justify himself for taking possession of the Batture, 
as of ** Lands ceded to the United States" under his right to re- 
move a nuisance which he never did remove, and which both 
you and he well knew was no nuisance. 

In the whole of this transaction, then, we find a consciousness 
of wrong, a fear, from the very commencement, of legal investi- 
gation, and a studied contrivance to shield himself from the 
consequence of his illegal acts, at the expence of those by whose 
ministry they were carried into execution; and this suggestion 
by which Mr. J. endeavours to escape from the responsibility 
of the act, and throw it on an honest man who would have lost 
his office if he had refused to obey; this generous contrivance 
by which the marshal is left to escape as he can, behind the 
poor paper defence that is prepared for him, — all this is of 
a piece with the plea made in Virginia, that I ought not to sus- 
tain my action against the principal aggressor, because I had not 
brought in his instrument to share the penalty and ease him of 
its load. — "In that case the marshal must justify himself not 
under the order, but his personal right to remove a nuisance." 
Not so, sir; the principal aggressor is not so easily to escape; it 
is not the marshal who is to justify himself, but the President 
who directed him; the order is not to be withdrawn, in order to 
make room for the abatement of the nuisance; the mandate and 
its maker, must and shall stand before the public, at least, if I 



128 

cannot bring them before a Court, and this last poor effort of 
evasion and chicane shall be of no avail. 

If Mr. Livingston's possession was anterior to the passage of 
the act, then the warrant ought not to have been executed on him; 
the marshal then has exceeded his authority and cannot use the 
mandate as his justification, because he was ordered to dispos- 
sess those only who had taken possession after the 3d of March, 
1807. This is Mr. Jefferson's reasoning, but he does not tell us, 
that when he issued the warrant, he was as perfectly acquainted 
as he now is, with the date of my possession, and the circum- 
stances under which it was taken. What then was his intention, 
that it should be executed on me or not? If he did not intend 
that it should be so executed, why was it issued? If he did, with 
what decency can he now attempt to throw the responsibility on 
his officer for doing that which he intended he should do. — The 
quibble therefore drawn from the words of the order will not 
serve him, for he has made the marshal's act his own, not only 
by previous intent but subsequent ratification. He has reported 
it to Congress, he has acknowledged and vainly attempted to 
justify it to the world, as his own, and ratification renders the 
principal liable as well for the torts as the contract of the agent. 

" Dejicit et qui mandat." Dig. 50. 17. 152. He expels ano- 
ther by whose command it is done. 

" Sed et si quod alius dejecit, ratum habuero, sunt qui putent 
(secundum Sabinum et Cassium, qui ratihabitionem mandato 
comparant) me videri dejecisse, interdictoque isto teneri: et hoc 
verum est, rectius enim dicitur, in maleficio ratihabitionem man- 
dato comparari." D. 43. 16. 1. s. 14. 

" But if I ratify the act of expulsion done by another, there 
are those who think (with Sabinus and Cassius, who place a 
ratification and an authority on the same footing), that I shall 
be deemed to have made the expulsion myself, and be bound by 
this interdict (unde vi); and this is true: for it may properly be 
said that in torts a ratification is equal to a command." 

Whatever, then, were the terms of the mandate, it was intend- 
ed to operate on my possession, (the date of which was known 
when it issued). It was executed according to the intent, and 
he who issued it, ratified the execution. Therefore if I have 
shewn my possession to be prior to the law, I shew an illegal act, 
and prove Mr. Jefferson himself, not the marshal, alone guilty 



129 

of it, and on this point, as well as the former, I may flatter my- 
self with having proved, that neither my property nor my pos- 
session of it, came within the purview of the act of Congress. 
But if they had been embraced by it, the act of dispossession was 
not the less illegal, because: 

II. The directions of the act were not pursued. 

Soon after the United States had taken possession of Louisi- 
ana under the treaty, an act was passed, of which the object was 
to discover what tracts of land had been legally granted by the 
former sovereigns, and how much was still vacant. It directed 
that persons claiming lands, should exhibit their titles to boards 
of commissioners appointed for that purpose, by the first day 
of March, 1806, which, by a subsequent law, was extended to 
the first day of January, 1808. — This exhibition of title is made 
obligatory on the claimants under incomplete titles, optional with 
those proprietors whose grants were formal and complete. Act 
of the 2d of March, 1805. Sect. 4. 

The claimants under complete grants having their title secur- 
ed by the treaty, were, as we see, under no necessity of filing 
their claims. Those only who wanted a further confirmation 
from the new government, were obliged to do it. — That under 
which this land was held, being a complete grant, those who 
claimed under it, did not deem it necessary to incur the expence 
of laying their title before the commissioners, and this is a full 
answer to Mr. Jefferson's declamation, about my declining or 
passing by " the preparatory tribunal of the commissioners."* 
It was left at my option, whether I would submit my title to 
their inspection, or not, and we shall presently see that the time 
given me by law to make this election was not allowed. 

There is another law of the United States, supplementary to 
the former respecting lands, which is approved on the same day 
with that under which the warrant was issued, but being two 
chapters before it in the statute book, was probably passed by 
the two houses some time before. This law extends still further 
the time for the exhibition of claims, to the 1st of July, 
1808, declaring that " persons delivering such notices and evi- 
dences shall be entitled to the same benefit, as if the same had 
been delivered within the time limited by the former acts," and 
which gives (by the 4th section) to the commissioners the right 
of finally deciding all claims for a quantity not exceeding one 
league square of land, in favor of any one or his legal represcn- 

* Jeff. pp. 69. 70. R 



130 

fative, who was an inhabitant of the province on the 20th of 
December, 1803. 

The first section of the law under which the mandate issued, 
we have seen, contains a proviso that " nothing therein contain- 
ed, shall be construed 'to affect the right, title or claim of any per- 
son to lands in this territory — until the commissioners shall have 
made their reports, and Congress shall have decided thereon." 
-~Now as this proviso is contained in "my part of the act" I 
must be entitled to its benefit; and as the commissioners did not 
make their reports until the end of 1812, and Congress have 
not yet decided on them, I have a right to protest against any 
construction of the section, which affects my "right, title or 
claim," and most assuredly that construction affects them all, 
which supposes it to vest in the president the power of dispos- 
sessing me by force, without a hearing. Does it not affect my 
right to lands, to give another the legal power to deprive me of 
their enjoyment? The exercise of this power is a temporary 
destruction of my rights. Let us distinguish; the casual loss of 
possession does not, indeed, absolutely destroy my right to the 
land, but giving another the legal power to dispossess me, does 
affect it, because it creates a right in that other to expel me, which 
is inconsistent with my right to enjoy. There cannot be two in- 
consistent rights to the same thing. The right to enjoy is inherent 
to the right of property; whatever interferes with, a fortiori, 
whatever destroys it, must affect that right. Therefore a right 
given to another to expel me from my land, affects my right to 
the land, and as, by the very words of the proviso, the power to 
affect my right is limited to the happening of events which had 
not then, and have not yet taken place, it follows irresistibly, that 
having done an act which does affect my right, he has done that 
which was not warranted by the law, in other words he has not 
pursued its provisions. 

Taking his usual liberty with the text of every law that stands 
in his way, Mr. Jefferson quotes the proviso thus, (page 69): 
" Providing however that this removal shall not affect his claim, 
until the commissioners shall have made their reports, and 
Congress decided thereon." — And he takes care to connect it 
with the enacting clause, by placing it between the same in- 
verted commas, as*eing a continuation of the same text. — Never 
was there a more flagrant perversion. If the law had really de- 
clared, as this false quotation makes it declare, that the removal 



131 

should not affect the claim, &o, then it might have been undei^ 
stood to authorize the removal; but the proviso says nothing 
of the effect the removal is to have on the claim; its words are: 
"Provided that nothing herein contained, shall be con- 
strued to affect" &c. What was therein contained? Not the 
removal, — that is not contained in the law, — but the power to 
remove, and the law, then, substituting this synonymous phrase, 
would read thus: Provided that no power herein given to the 
president, shall be construed to affect the right, claim, or title 
&?c. until the commissioners, &c. If the intent of the proviso had 
been such as Mr. Jefferson supposes, the language he ascribes 
to it, would have been in truth adopted; if it had intended that 
the president might remove from the possession, and that the 
party might afterwards discuss his eventual right to recover it, 
before the commissioners, the expression removal, or some 
other equivalent one would have been employed; but even then 
we should be at a loss to account for the subsequent limitation, 
" until the commissioners shall have reported." The removal 
shall not affect the claim until the report is made and decided 
on. Shall it then? certainly not; according to Mr. J.'s construc- 
tion, the removal is to keep every thing in statu quo; it cannot, 
according to his sense then, affect the right any more after, than 
it did before it took place, and the limitation therefore, as he 
reads the phrase, is nonsense. But as I construe it every thing is 
consistent; the president shall have the right of removal, but he 
shall not exercise it as to the lands in Orleans or Louisiana, 
until the commissioners shall have reported, and Congress shall 
have confirmed their report. Why this proviso in favor of these 
territories? Because commissioners were then occupied in de- 
termining what were the lands ceded to the United States, to 
what lands they had conferred the title; in short, in ascertaining 
by their reports the facts on which alone the President was em- 
powered to act. My construction allows the President to act 
in something like a legal form; bv adopting it and restraining 
his right of removal to the time when the reports of the com- 
missioners shall have been confirmed, he will at least have some 
evidence of the facts and of the dates: that evidence will have 
been collected in something like a legal form, the party will have 
had an opportunity of producing his witnesses, and knowing 
those who have appeared against him, and a substitute of some 
sort, will have been provided for the inquest of office. But by 



132 

the interpretation given to the proviso by Mr. Jefferson, the 
President must proceed without any means of ascertaining the 
facts which alone render his measures legal, should he wish to 
proceed correctly; and what is worse, he may proceed, should 
he be guided by unworthy motives, he may proceed directly con- 
trary to the intention of the law. As on this construction he is 
sole judge, both of the evidence used and of the means of ob- 
taining it, he may listen only to his own suspicions or the 
secret denunciations of others, he may consult the private inter- 
est of his favorites or his own popularity, and masking the whole 
with the appearance of zeal for the public interest, he may 
chuse the innocent victims of the law among his enemies,* and 
suffer guilty aggressors, who have the merit of supporting him, 
to escape; he may do all this with impunity, because whenever 
called on to account for his conduct either before the public or 
his constitutional judges, he may say, as Mr. J. has said, if I 
erred, it was an error of judgment, the law made me the judge 
of the evidence and I thought it sufficient. — Should the plain 
language of the law be followed, no such excuse could be al- 
lowed, for the report of the commissioners would have ascer- 
tained the facts, and have left the President no occasion for the 
application of his judgment to the evidence. — Which of these 
constructions, then, is most probably the true one, — that which 
leaves every thing to the discretion of one man, which makes 
him judge of law, of fact, and executor of his own decisions, 
which permits him to take evidence in secret, and even allows 
him to act without it, which destroys all responsibility, and 
gives a ready excuse for every act of violence, — or that which 
confines the executive to executive duties, which ascertains 
facts by the open examination of witnesses, prevents every act 
of expulsion until the fact is ascertained to warrant it, — and af- 
fords no excuse for a wanton act of oppression. Surely in a 
government of departments, there can be no hesitation in de- 
ciding on this alternative. 

Thus we find, that in the first section, whi< h he emphatically 
terms " m\ part of the act," there are pro isions that ought to 

* Nunquam, si quid ■ i i credi-, amavi 

Hunc hominem. — Sed quo ce idit sub crimine? quisnam 

Delator? quibus indici is? quo teste probavit? 

Nil horum; verbosa et grandis epistola venit 

A Capreis. — Bene habet, nil plus interrogo. Juv. Sat. x. 



133 

have protected my property from this violence. But this is not 
the only proviso overlooked on this important occasion. By the 
first section, we have seen that the president was authorised to 
direct the marshal, in the manner therein after directed, to re- 
move from lands ceded, &c. In order to determine whether the 
law has been pursued, we must inquire what is the manner of 
directing the marshal, that is therein after directed. — The second 
section contains no provision on this subject; it relates to per- 
sons residing on lands belonging to the United States; and di- 
rects a mode, by which, provided the party renounces all claim, 
he may obtain permission to remain on the land. — The third 
section provides for the registry of such permissions. — The 
fourth and last section, only, contains these directions; and in 
the first line, we find a provision which has been totally disre- 
garded. " It shall be lawful, (says this section) after the first 
day of January next" for the marshal, under such instructions 
as may for that purpose be gived by the president of the United 
States, to remove from the lands aforesaid, any and every per- 
son who shall be found thereon, and who shall not have obtained 
permission to remain thereon as aforesaid. 

There is, then, a provision, that three months' previous notice 
shall be given to those, who were settled on such lands prior to 
the passage of the act; and imposes a penalty on them for non- 
compliance with such notice. It then points out clearly, and expli- 
citly, the nature of the evidence required, in these words: " and 
the certificate of the proper register or recorder, shall be a 
sufficient evidence, that the tract of land which was occupied by 
the offender, had not been previously sold, leased or ceded by 
the United States; that the claim to such tract had not been re- 
cognized and confirmed by the United States; and that the per- 
son occupying the same, and removed, or to be removed, had 
not obtained permission to remain thereon, in conformity with 
the provisions of his act." Then another proviso, that nothing 
in this section contained, (and note, that this is the only section, 
which directs the manner of authorising the marshal to remove) 
shall be construed to apply to any person claiming lands in the 
territories of Louisiana and Orleans, whose claim shall have 
been filed, with the proper commissioners, before the first dau 
of January next. 

Now, what can be said for the open contempt of every provi- 



134 

sion of this fourth section, to which the first refers the president 
for the manner in which he is to direct the removal? 

Its operation is limited to some time after the 1st of January, 
1808; yet on the 30th of November preceding, he signs the 
warrant. It is not to apply to any person in this territory, who 
shall have filed his claim before the 1st of January, 1808; yet, 
without waiting to see whether I would file such claim, the 
mandate is issued a month before that day. Should this last 
objection be answered by saying, that the event has shewn, that 
I did not file my claim before the 1st of January, — I reply, this 
does not excuse the illegality of the warrant; the law does not 
authorise him to command the marshal to remove such as he 
believes will not file their claims before the period assigned, 
but only such as have not done it. He was therefore, if he in- 
tended to observe the law, obliged to wait the expiration of 
that period. Should he attempt to obviate the first objection, by 
saying, that the limitation relates to the execution of the order 
by the marshal, not the giving it by the president, I answer, 
that this is at war with the spirit, and even the letter of the act; 
which clearly intended to fix the period at which the commis- 
sioners' power ceased, as the one at which that of the president 
should begin; for this plain reason, that inquiry should precede 
action; that facts should be stated before a conclusion could be 
formed; that sentence should go before execution. 

And I further reply to both these answers, by remarking that, 
though the first day of January was designated by both the pro- 
visions I have pointed out, yet that period is fixed, only because 
it was the time limited for the commissioners to receive claims; 
and that this period was extended to the first day of July fol- 
lowing, by an act passed the 3d of March, 1807; which express- 
ly provides, that " persons delivering such notices and evi- 
dences, (before the 1st of July, 1808) shall be entitled to the 
.same benefit, as if the same had been delivered within the time 
limited by the former acts," (before the 1st of January, 1808.) 
Now, I ask, whether exemption from removal was not a benefit I 
would have been entitled to, by delivering my claim before the 
1st of January, 1808, by the former act? If so, it is secured to 
me by the act of 1807, provided I file the claim before the first 
day of July. Yet, without waiting to know whether I will file 
it, even before the 1st of January, the warrant is issued in Nov 
vember, by the president, and the marshal executes it in Ja- 



135 

nuary: in defiance of the law which explicitly gave me until July 
to perform the act, on the failure of which alone I could be 
dispossessed. In this, also, the directions of the act have been 
disregarded, even if mine were a case coming within it. 

If, however, this act comprehends such a case as mine, and 
authorises such proceedings as have been had against me, it 
will cost no great trouble to shew, 

III. That it is unconstitutional. 

The government of the United States, is one of departments. 
With some exceptions, the three great branches are kept per- 
fectly distinct. Those exceptions being clearly pointed out, 
prove the rule. The president participates in the duties of the 
legislative branch by his qualified veto; the senate, with those 
of the executive, in confirming appointments; and both the 
senate and house of representatives, with those of the judiciary, 
by their agency in preferring and trying impeachments. No 
duties, however, mingling with those of the other departments, 
have been prescribed by the constitution to the judiciary. 

An act imposing the duties of one of these branches upon 
either of the others, is unconstitutional. One arming a single 
branch with the powers of the others, is tyrannical as well as 
unconstitutional. Whatever tends to this effect in its conse- 
quences, sins against the spirit of the constitution — whatever 
produces it directly, violates its letter. 

To prescribe rules by which a question of property shall be 
determined, is a legislative act. To decide that question, is a 
judicial one; and to carry that judgment into effect, belongs to 
the executive power. In our constitution, congress enact the 
rules of evidence. One branch of the judiciary ascertains the 
fact, to which the other applies the law; and the president, bv 
his ministers, executes the sentence. There is harmony as well 
as justice in this distribution. Whatever inverts it, is unconsti- 
tutional and tyrannical. To prescribe what acts are necessary 
to acquire or to preserve property, is an exertion of legislative 
power. Should it be exercised by the judiciary, as the same 
power that makes may alter, there would, in fact, be no rule; it 
would vary with every case. Law is nothing but the expression 
of legislative will. In cases where judges are legislators, we 
should have no law but the judges' will; consequently, no fixed 
law as a guide for judicial decisions. Such a state would be one 
of miserable servitude; and admit of no increase, but that which 



136 

would result from adding to the right of making and expound- 
ing laws, the power of executing them. There can be no civil 
liberty in the government where this confusion of power gene- 
rally prevails; and the constitution of a country is less perfect, 
in proportion to the number of particular cases in which it is 
admitted. By our constitution, this intermixture of powers is 
sanctioned only in the instances already pointed out. Whatever 
act, therefore, multiplies these cases, is unconstitutional. 

Let us test the law now under consideration, or rather Mr. 
Jefferson's practical construction of it, by these principles. It 
authorises him to remove persons, who have taken possession of 
lands belonging to the United States before a particular period. 
Whether certain lands belong to the United States, whether a 
certain individual has taken possession of them, and at what 
period, are judicial questions. The removal that takes place 
after their decision, is undoubtedly an executive act. But by 
Mr. Jefferson's construction of the law, and his practice under 
it, both these duties devolved upon himself, and produced an 
union of judicial and executive powers. But before a decision 
could be made on the question of property or possession, some 
rules of evidence must be formed, some law by which the de- 
cision is to be made; — what shall be the evidence of property — 
what of possession — shall it be written or oral, positive or pre- 
sumptive — how this evidence is to be produced — shall it be 
taken in the presence of the person interested, or ex parte only — 
shall he have the privilege of producing proof — shall he be 
heard by counsel? The solution of these, and many other ques- 
tions of the like nature, are so many laws which must be pro- 
vided for the judge. If he be allowed to make them, he has 
then legislative power. But this is precisely what Mr. Jefferson 
has done, and what he thinks the law allows him to do. The 
law then, by his construction of it, gave him, as president, legis- 
lative, executive and judicial powers; and, of course, if there be 
any truth in the principles I have laid down, must be unconsti- 
tutional. 

On the last division it may be answered, that, although the 
act gives no rules of evidence, it does not necessarily follow, that 
it delegates the power to make them; and that there are laws 
already in existence on this subject. To this I reply, that those 
rules relate to the common course of judicial proceeding in 
courts; and that when powers are given, totally inconsistent 



137 

with that course of proceeding, another set of rules must be pro- 
vided. And of this opinion Mr. Jefferson seems to have been; 
for there is not a rule of judicial proceeding, that he has not 
discarded — not a principle of evidence, that he has not vio- 
lated — not a maxim of justice, that he has not trodden under 
foot in the course of this investigation. His evidence was ex 
parte — taken in secret; and what evidence? quo teste? quibus 
indiciis? Deeds? Documents? depositions of witnesses? — No- 
thing of the kind: nil horum, as in the passage from Juvenal be- 
fore quoted.* What, then? — Again in the language of the Roman 
satyrist, verbosa et grandis epistola venit. He had the letters of 
a man known to be at variance with me, and the argument of a 
counsellor, whose duty it was to invalidate my title, and who 
had been professionally employed for that purpose. This, I am 
well convinced, is all he had; for, whatever shreds of proof he 
may have patched together since,f I have the strongest pre- 
sumptive testimony he had nothing better then. With this, and 
this alone he was satisfied. Bene habet, nil plus interrogo. 

* P. 135. 

| A few months after the transaction, I wrote to Mr. Rodney, to whose ad- 
vice I was always referred for a justification of the proceeding. I wrote to him, 
to intreat that he would let me have a copy of his opinion, and give me the evi- 
dence on which he had founded it. I conclude one of my letters on this 
suhject to him thus: 

" I give you at foot a list of the documents I have seen, trusting, that if there 
are any others, which you have made the basis of your advice, you will com- 
municate them." At foot was this note: " List of documents furnished to 
support the title of the United States, which I have seen. — 1. Mr. Derbigny's 
statement and opinion. 2 Examen de la sentence. 3. Pieces probantes. 4. Re- 
solution of the corporation of New Orleans, requesting the governor to take 
measures to assert the title of thi United States. 5. A letter from governor 
Claiborne, stating, among other things, that he believes Mr. Derbigny's state- 
ment of facts to be correct. 6. Extracts from the Deliberations of theCabildo." 
To this letter, in which I not only apply seriously to his recollection, but aid 
it, as far as lay in my power, by pointing out the papers I had since seen, the 
attorney-general replies: " My impression is, that the statement of Mr. Der- 
bigny, with his opinion, and a letter from governor Claiborne, mentioning that 
Messrs. Gurley and Moreau Lislet concurred in that opinion, were the papers 
officially furnished me; / do not recollect, at present, that there was any other/.'" — 
I ask, whether the attorney-general's impression, so shortly after receiving the 
•ommunication of the two papers; his want of recollection of any other, when 
the rest were specially referred to, is not the strongest evidence, that no other 
proof was offered to him ? 

s 



138 

The party, so far from being called on to defend his title, had 
no notice nor the slightest suspicion of the nature of the pro- 
ceedings against him. It is therefore evident, that the president 
thought himself bound by no pre-existent rules, either as to the 
mode of making the enquiry into the title or the fact of posses- 
sion, or the nature of the evidence to support them; and that he 
had a right to adopt such as he thought proper, or in other 
words, to legislate on this branch of the subject. According to the 
practice under this law, and the exposition of it made to justify 
that practice, it authorizes a confusion in the exercise of powers, 
confided, by the constitution, to distinct hands, and of course is 
unconstitutional. 

But I do not rely solely on the violation of the great principles 
of the constitution, apparent in this act: there are particular 
provisions with which the practice, under it, is equally at war. 
By the third article, the "judicial power of the United States 
is vested in one supreme court, and in such inferior courts as 
the congress may from time to time ordain and establish." 

By the first article this power of establishing courts, inferior 
to the supreme court, is expressly enumerated among those 
given to the congress. 

By the second article the " president is empowered to require 
the opinion, in writing, of the principal officer in each of the 
executive departments, upon any subject relating to the duties 
of their respective offices." 

If, under the clause last quoted, the president should assem- 
ble the heads of the executive departments, and, instead of ask- 
ing each one his opinion in writing on a subject relative to the 
duties of his separate department, should put to all a question 
relative to the duties of one department, or a question which 
related to neither, — there is nothing in this contrary to the letter 
of the constitution, because the members of such a council are 
at liberty to give or refuse the opinion demanded of them; and 
when given, it forms no rule for the president's conduct: but 
though not contrary to the letter of the constitution, it will, I 
believe, be found contrary to its spirit, by which the president 
is supposed to take the responsibility of all his acts, divided 
with the particular officer whose advice he is empowered to 
ask on the business of that officer's department, but undivided 



139 

as to all those measures which the constitution and laws have 
placed under his sole direction. 

It is true, as I have said, that the heads of departments are 
not obliged to assemble in what is called a cabinet council, and, 
when there, each member may refuse to give any opinion, except 
on the business of his own department. But the exercise of this 
right of refusal cannot be expected from men holding their 
offices at the will of the president. It is, therefore, nugatory in 
practice, and the ^request of the president is, in this respect, 
equivalent to a command, which must be obeyed. The convo- 
cation of the heads of departments is in effect the creation of a 
privy council, which is a body unknown to the constitution. — 
As, however, (it may be said) the president is under no obliga- 
tion to adopt the decisions of this council, it is an harmless and 
may be an useful body. It is no more than the convocation of a 
few enlightened friends, to aid the first magistrate by their 
advice, which he may adopt or not. This is true in theory, but 
in practice there is nothing more unfounded. — There is cer- 
tainly nothing to reprehend in the practice of taking advice 
and seeking for information; but it ought to be done in a 
way not subject to abuse, not to create by usage the post of 
official advisers. — The extra- constitutional practice of assem- 
bling the heads of departments to advise the president has now 
been so long established, that the cabinet council is as familiarly 
spoken of, and is as well known, as if it Were established by the 
constitution. This practice did not, I believe, originate with 
Mr. Jefferson; but he is the first president, as far as my in- 
formation goes, who has endeavoured to interppse its resolu- 
tions between himself and the people, and to divide, at least, 
that responsibilitv which he incurs for all official acts. Here we 
see how easily, how imperceptibly radical abuses creep into the 
best governments, and how jealous the people ought to be of 
the slightest innovation. It was right in the president to seek 
information and ask advice, it was natural to have recourse 
to the heads of departments, it was convenient that they should 
assemble to interchange their opinions, and, in most cases, that 
opinion being either agreeable to the president for its conformity 
with his own, or of sufficient weight to carry conviction, that 
opinion is followed. In all this there is no danger; but in 
process of time, this assemblage of friends acquires a name 
in the government; it is a cabinet council, and ha* weight with 



146 

the people. The president's responsibility is lessened when he 
acts in conformity with this advice, it is increased if he disre- 
gard it; and a? he can generally manage to secure a concurrence 
with his own opinions, those of the council are always ready to 
divide with him that responsibility which the constitution, in its 
purh , intended to cast upon him personally and alone; and 
thus a branch of government is imperceptibly created, totally 
unknown to the written constitution. Hitherto we have seen, in 
the progress of enquiry, the heads of departments transformed 
into a privv council, but occupied only with affairs of state, un- 
constitutionally, it is true, sharing the duties and the responsibi- 
lity of the executive, but interfering with no other branch of 
government. It was reserved for Mr. Jefferson (if his state- 
ment be correct*) to invest them with the powers of a court of 
justice; and if the first decision of this Star Chamber] court be 
submitted to with the apathy that has hitherto prevailed, we 
need no prophet to assure us that I shall in due time have other 
companions in misfortune: all cases of public claim to lands, of 
intrusion, of nuisance, will find their way to this secret tribunal. 
It ought to be preferred by the public to every other. Defect of 
title forms no impediment to recovery; the best title in the pos- 
sessor is no bar to his expulsion; witnesses are not wanted 
where evidence is dispensed with, and the expense of jurors 
apd salaries of judges are saved in cases too nice to be trusted 
to the blunt integrity of the one or to the unsophisticated learn- 
ing of the other. With all these advantages the cabinet court 
will always be preferred, where vengeance is to be wreaked, or 
popularity gained; and I entreat the people of America to 
reflect that from smaller beginnings than this, the most op- 
pressive institutions have corrupted other governments, and 
may destroy our own. Although I have anticipated some of the 

* I hope this reservation will be recollected in all I say on this subject. The. 
characters of the gentlemen composing the cabinet, their known attachment 
to the constitution, independent of other circumstances to which I have allud- 
ed above, (p 33), forbid my giving credit to the broad and unqualified state- 
ment which asserts their co-operation. 

-j- I libel the star chamber and degrade the cabinet court, if that court ever 
existed, by the comparison. There was nothing so odious in the English tribunal 
as the incpui si tonal proceedings stated by Mr. J. to have taken place at Wash- 
ington ami i he right of condemning unheard, would suffer by a comparison with 
the lii tted J o \ ers of the English court, which, in the plenitude of its power-, 
called on the defendant for bis proof, though they sometimes disregarded it 



141 

arguments on this head, I am yet bound to make out more 
fully tht! allegation chat the c bin t council, according to Mr. 
Jefferson's account of their proceedings, assumed judicial 
powers, that they wer. unconstitutionally exercised, and ty- 
rannically executed, and that as the whole was done at the 
president's request, ?nd under his authority, if his statement be 
correct, though others may share they cannot lessen his guilt. 

The convocation of the heads of departments "to whom the 
papers had previously been communicated," is distinctly stated 
(pagr 21). The first law officer of the United States attended, 
and " gave all the lights which it was his office to throw on the 
subject." And what was the subject? The right of the president 
to dispossess certain individuals at New Orleans of lands which 
they had acquired by fair purchase, and under the decree of a 
competent court. This right was to accrue in one of two ways. 

1. From the individuals being intruders on public lands. 

2. From their having been guilty of raising works injurious 
to the public safety. 

Both these are judicial enquiries, the first of civil, the second 
of criminal law. — To come to any decision on the first, the 
point of property must be investigated, and afterwards that of 
possession; and to determine the second, the fact charged must 
be proved on the persons accused, and the illegality and inju- 
rious nature of the works complained of must be demonstrated. 

The task then undertaken by the president and his council, 
was a judicial one in the strictest sense of the word, and they 
applied themselves to it with some degree of form. A prelimi- 
nary question to be decided by a court enquiring into a case is, 
By what rule are we to decide? what law is to govern the case? 
and we accordingly find that this was the first object of atten- 
tion with our new tribunal. " The first question occurring (says 
Mr. Jefferson) was, what system of law was to be applied to 
them?" They adopt the laws of France, and then they, or Mr. 
J. (for it does not clearly from his style appear which) reason 
through forty pages upon the law and the fact, and having 
clearly settled both in their own minds, they are convinced of 
the gudt of the accused, and (p. 64,) we have the important en- 
quiry in the criminal cause: " What was to be done with such 
an aggressor?" Having with a humanity for which I can never be 
too grateful, determined that though he richly deserved it, they 



142 

would not burn him alive, they proceed to declare what sentence 
shall be passed on the civil side, or to give Mr. Jefferson's 
words: " The question before us was, what is to be done? What 
remedy can we apply authorised by the laws and prompt enough 
to arrest the mischief?" The points of law and of fact deter- 
mined by this tribunal are then resumed and stated with pre- 
cision, and we at length come to the decree which is thus render- 
ed, (p. 72): " On duly weighing the information before us, which 
though not so ample as has since been received, was abundantly 
sufficient to satisfy us of the facts, and has been confirmed by 
all subsequent testimony, — we were all unanimously of opinion 
that we were authorised and in duty bound without delay to 
arrest the aggressions of Mr. Livingston on the public rights, 
and on the peace and safety of New Orleans, and that orders 
should be immediately dispatched for that purpose, restrained 
to intruders since the passage of the act of March 3d." 

Here is the sentence, and I am mistaken if a more formal one 
ever received the sanction of a court. 

First we are told that they " duly weighed the information 
before them" and though, to be sure, it was not so ample as has 
since been received, yet it was abundantly sufficient to satisfy 
them of the facts. Here then is a decision in form of the facts 
in the case. 

But, lest any doubt should be entertained of the jurisdiction of 
the court, an elegant pleonasm is introduced to mark this feature 
strongly, and shew that no doubts were entertained, at least 
by the judges, on this subject. We were all unanimously (says 
the classic Jefferson,) of opinion, " that we were authorised 
and in duty bound to arrest the progress of Mr. Livingston." 
Here the offender is pointed out, and his double aggression dis- 
tinctly marked; he is found guilty of offences against the public 
rights, and the peace and safety of the city of New Orleans. — 
This is the conviction; in 'he sentence, I confess, there is more 
obscurity than I should have expected from the pen of the en- 
lightened chief of the tribunal. " Orders, it is said, should be 
immediately dispatched for that purpose," (viz. to arrest the 
aggressions of which I had been found guilty). What those or- 
ders were, in what manner the evil was to be arrested, does not 
appear by the record; they had confidence in the president, per- 
haps, and left this to his discretion; — but the obscurity is cleared 
up by the execution which immediately followed the sentence* 



143 

It consisted of an order from the secretary of state to the mar- 
shal to remove all persons from the batture, who had taken 
possession since the 3d March, 1807. The civil power is to be 
first employed, and in case that should prove insufficient, the 
secretary at war, another member of the court, orders the mili- 
tary force to carry it into effect. — The sentence was executed, and 
the unfortunate offender thus legally, fairly, and constitutionally 
condemned, was reduced from affluence to poverty, from the 
prospect of independence, to a life of solicitation and labour. 

I must be understood, throughout this part of my argument, 
to speak hypothetically, on the supposition that Mr. Jefferson's 
statement, of which I have repeatedly expressed my disbelief, is 
true in all its parts; that the heads of departments did actually 
sit in council with the late president on my case, and that after 
deliberating on the subject, they unanimously resolved (as in 
duty bound) that I should be dispossessed of that property, or in 
other words, that my supposed aggressions should be arrested, 
in such manner and by such means, as the president in his dis- 
cretion should think proper. Admitting this to have really been 
the case, I think I have sufficiently shewn that these proceedings 
amounted to the institution of a court, for the decision of the 
right to property in a manner unknown^to the constitution and 
subversive of its principles. Should it, however, be objected 
that the decision was not conclusive, that this court or council, 
as it may be called, only determined the right of possession, I 
answer that the right of possession is no less the object of judi- 
cial enquiry, than the right of property. Should it be said that 
the order to remove only affects the possession and not the 
right to possess, my answer is, that in many cases, such as loss 
of title deeds, actual possession is the only means of securing 
the right of possession and even that of property, — and that 
again, the determination of a question which affects my actual 
occupancy, is a. judicial decision. — Can it make the slightest dif- 
ference in its favour, that this proceeding was a decision be- 
tween the nation and an individual in favour of the rights of the 
former? The evil intended to be guarded against by distributing 
the judicial power into other hands than those of the executive, 
was not so much the fear that injustice would be done in con- 
troversies between individuals, as to secure the citizen from 
the oppression of the man in power, private rights from en- 
croachments which are always made under the specious pre- 



144 

tence of public good. In republican Rome, wheh the sovereigns 
were too numerous to be satisfied with the confiscation of indi- 
vidual estates, whenever a demagogue wanted to rise from ob- 
scurity, he proposed a general pillage of the rich, under the 
form of an agrarian law, or of an abolition of debts; — under the 
emperors, imaginary plots answered the purposes of transferring 
the inheritance of the richest senators into the imperial coffers; 
and in both instances, the rights of the public* the sacred interests 
of the nation, was the pretext. — Amidst all this public rapacity, 
private justice was distributed between individuals with an even 
hand, and some of the most revered sages in civil jurisprudence 
flourishtc' under the most detestable tyrants of the Roman em- 
pire. The injustice of the Star Chamber could never have be- 
come proverbial, but for its decisions in cases between the 
sovereign and his subjects, and Jefferies himself was not remark- 
able for any outrage in deciding individual rights. The danger 
then from the assumption of judicial power, is not the less ap- 
parent oecause it was made in favour of the government. It on 
the contrary aggravates the offence, and I think I have succeeded 
in shewing that if the cabinet council actually took the part which 
Mr. f. attributes to them in this affair, they have combined with 
him in the assumption of judicial powers, and have exercised 
them not only unconstitutionally, but with cruelty and oppres- 
sion. Should they be unjustly accused, it is not I who have 
calumniated them. On the contrary, from the character those 
gentlemen deservedly enjoy, I cannot avoid believing that there 
is much misrepresentation as to their agency in the business. 
Should there be none, they must participate, though they cannot 
lessen, the responsibility of the late president; the whole pro- 
ceeding was carried on under his name, and he, (whoever ad- 
vised or consented to the measure) he, is individually responsible 
to his country for the act. 

3. The unconstitutionality of the law, under the president's 
construction of it, may also be shewn by a recurrence to certain 
fixed and sacred privileges which that construction violates. 

The seventh article of the amendments provides, that " No 
person shall be deprived of life, liberty, or property, without 
due process of law." The ordinance which formed the constitu- 
tion of this territory at the time, contains a similar provision, 
but in words which have become sacred as well as technical,— 
" No man shall be deprived of his liberty or property but by 



145 

the judgment of his peers, or the law of the land." By both 
constitutions the trial by jury was established. Now, leaving for 
a moment out of view the right to a trial by jury, what is this 
law of the land by which alone a man may be deprived of 
property? An arbitrary act either of the legislature or the exe- 
cutive, or of both? Certainly not. Those arbitrary acts were the 
very evil intended to be guarded against. It means a process 
according to the general course of judicial proceeding; a fair, 
open, impartial trial, as contra-distinguished from secret, inqui- 
sitorial investigations, and open, violent inroads upon property. 
Bui will the sophism be repeated, that this secures the citizen 
in the possession of his property, not in that of the public; — 
that if the public seize their own, they may do it legally, without 
any previous investigation. — But who is to decide whether 
it belongs to the individual or the public? The government 
itself. But what branch of it? The executive in the first instance, 
says Mr. Jefferson, and the legislature afterwards, to correct 
his errors. This is the political heresy which I wish to refute; 
this is the dangerous doctrine to which I wish to call the atten- 
tion of the country. — Had it been only the false theory of a 
man no longer in office, it would, with some of his other theo- 
ries, have been laughed at, and forgotten. But he has practised 
under it, it has become a precedent, and, as he says, was sanc- 
tioned by the opinion of those now at the head of our govern- 
ment. If the doctrine be dangerous, if the precedent be ruinous, 
ought it not to excite attention, and become alarming? In treat- 
ing this part of my subject, my own injuries, great as they are, 
escape from my view, they sink before the magnitude of the 
danger which threatens a people insensible to such acts of arbi- 
trary power, to the ruinous tendency of the principles by which 
they are attempted to be justified. 

Let us fairly state those principles. They run throughout the 
whole book, but are condensed in p. 68. 

The nation has a right to take property into its own hands by 
Jorce, and without any previous trial, when that property is its 
own. 

While the property is retained in the hands of the nation, it is 
not under the jurisdiction of any court, and consequently cannot 
be claimed by law, because the United States cannot be sued. 

These are the principles: let us now see whether the nation 
has a right to take its own at short hand, as Mr. J. most em- 

T 



146 

phatically terras it. — But as this expeditious act of justice can- 
not b<» performed by the whole nation, nor by all the branches of 
its government, to whom is it to be entrusted? The practice, 
in this case, says to the executive. The executive power is vest- 
ed in one man, called the President. This one man then may 
seize, at short hand, all property of the public which he finds 
in the possession of individuals. But how is he to ascertain 
what belongs to the public, what to the individual who occupies 
it? The answer again given, as well by the practice as the theory 
of our author is, that he is to get such evidence as satisfies 
himself: he is to be the sole judge, he is to form his own law, he 
is to collect his own evidence, or to act without it; he may listen 
to his own prejudices and consult his own popularity, or he 
may become the contemptible instrument of the animosities of 
others. — Whenever, then, he erroneously thinks, or wickedly 
affects to think, that land in my possession belongs to the public, 
the president may order a regiment of dragoons to drive me 
from it at the point of the sabre; — and, as he may keep as well as 
take, for the use of the public, according to the second branch 
of his doctrine, I cannot recover the possession, even with the 
best title, because the public cannot be sued! But I have some 
redress: the man who commits this illegal act is surely respon- 
sible to me in damages. No! I can sue him no where but in the 
scene of his oppression, where he takes care only to be present 
by deputy. A quibble, drawn from the common law, saves 
him from all the consequences of one species of action, and 
against any other he whines out the old threadbare excuse, it 
was an error of judgment! 

Is there, then, no resource? — does Mr. Jefferson's doctrine 
point to no mode of relief where property has been improperly 
taken? Yes; if the congress choose to sell the lands you may sue 
the purchaser, and if they keep them in their own hands, you 
may petition congress. — " The holders of property are safe 
against individuals by the law, and against the nation by its 
ownjusice" This is a pretty phrase, but what does it mean? 
That the sufferer has a right to petition congress for relief, who 
are to constitute themselves into a court of justice for the pur- 
pose of hearing the cause. They are to examine witnesses, 
study documents, hear counsel, weigh authorities, and then 
decide on every case in which the p>.wer of the president, or the 
legality of his acts, may be called in question. They are to give 



147 

up the great concerns of the natioa to judge particular claims., 
or they must postpone the latter until the business of legislation 
is completed. Admitting that it is possible in a body consisting 
of two numerous branches, to perform the duties of a court, 
and to investigate titles, I ask how is it possible for them to go 
through with the task, without totally neglecting their first and 
most important concerns. The examination of my title alone, 
the depositions of witnesses, ti>e pleadings of counsel, the in> 
vestigation of records, and the researches into foreign laws, 
necessary to a full understanding of the case, would have 
occupied them many months; and when all this should have 
been performed, and one house should be prepared to render 
judgment, the same task would be to be gone through in the 
other; and in the end, among near two hundred judges, how 
many different opinions are to be expected, how manv different 
ideas of fact, how many different deductions of law! what a va- 
riety of projects for the final sentence, each one supported by 
long speeches from the proposers! what endless argument! what 
confusion! How is it to be terminated? By a total denial of 
justice; by a delay, which is a;> bad; by compromise of indi- 
vidual rights, to suit political purposes. This is a faint, a very 
faint and imperfect picture of the consequences of that system, 
which Mr. Jefferson tells the people of the United States is their 
system of government;*— -which he represents as referable to 
the examination of questions of right before u irresponsible 
judges" as he contemptuously terms the judiciary. — Unhappily 
for me, a part of this picture is drawn from nature. I have been 
forced to take the course which he has pointed out. I sought 
for redress from the legislature. I found there some friends: my 
cause had able and zealous defenders. It was considered, as it 
really is, not only a grievous oppression to an individual, but an 
alarming stretch of power, which, if unnoticed, would grow 
into a destructive precedent. — Notwithstanding all this, I was 
kept from my family and my means of subsistence, soliciting 

* The celebrated lines of Otway on the tyranny of the Venetian Senate, have 
been so hackneyed by frequent quotation, that they have lost much of the effect 
which they are calculated to produce on the minds of reflecting men. But it is 
a lamentable truth, that they would not so often have been quoted, if cause 
had not been so often given for their application; and the present instance too 
clearly shews, that, even under the best constituted governments, magistrates 
will be found, who, while they violate the most sacred rights of citizens 

" TELL THEM 'TI9 THEIR CHARTER," 



us 

relief, for more than two years. — During all this time I could 
not obtain even a hearing. All I solicited was some mode of 
trial, some tribunal to which I might apply for redress. One 
plan after another was formed, debated, and rejected for another 
which shared the same fate. — Every fair and honourable means 
of solicitation was resorted to, every thing that I thought could 
excite the interest which my case merited — flattered with hopes 
to-day — cast down with despondence on the morrow, I felt, 
during all that period, the miseries of a life spent in solicitation 
and dependence.* If, as a suitor for justice, I could have re- 
sorted to a court, I should have asserted my right and been 
certain of a decision. I should not have entreated for that 
which was my due: but in this body, which, according to 
Mr. Jefferson, is so admirably constituted for the trial of titles, 
the most unremitted solicitation is necessary to prevent your 
case being stifled under the mass of public and private business 
which occupies the attention of congress. — I did solicit, but it 
was in vain; — I did entreat, but I was not heard. Congress did 
not, would not, nay, they could not themselves investigate the 
merits of my case. A majority were for giving me some trial, 
but they could never agree on the mode; and finally, in despair, 
I withdrew my petition. — This was the result of my pursuit of 
relief from congress; and to this result my inhuman adversary 
adverts with malignant triumph in the close of his work, where, 
by au irreverent allusion to the scriptures, he enriches the 
language with .a new word, to express his mockery of my com- 
plaints. They may be Jeremiades in the Frenchified diction of 
the member of the national institute — but none of them contains 

* Ah! little knowest thou, who hast not try'd, 

What hell it is, in suing long to bide, 

To lose good days that might be better spent, 

To pass long nights in pensive discontent, 

To speed to-day, to be put back to-morrow; 

To feed on hope, to pine with fear and sorrow; 

To fret thy soul with crosses and with care, 

To eat thy heart through comfortless despair; 

To fawn, to crouch, to wait, to ride, to run, 

To spend, to give, to want, to be undone; 

Unhappy wight! such hard fate doom'd to try; 

That curse Go send u to mine enemy. Spenser. 

1 quote this passage from memory, nd may ot, pe h >s, have given in 
every line the exa t words of the admirable author. But I have keenly felt 
all that he describes; — all, but tli sent ment expressed in the last line, ?n 
which I sincerely declare I do not participate. 



149 

a word, either untrue or debasing, one phrase beneath the dig- 
nity of a free citizen who knew his rights. The public shall 
judge. — I had solicited, as I have said, during several sessions, 
and was constantly flattered with the adoption of some plan 
that would secure me a fair trial. A bill was before the house 
and would probably, could it be taken up, pass; but congress 
were about to adjourn, the members were impatient to return 
to their homes, and I feared that, unless some effort were 
made, the adjournment would take place before the law for my 
relief could pass. I wrote the following letter, which Mr. Jef- 
ferson has selected as a subject of pleasantry in two different 
parts of his work. It was a circular, addressed to the members 
of the legislature, in these words: 

" Sir, 
"The peculiarity of my situation will justify me in renew- 
" ing to you individually, the appeal which has repeatedly been 
" made to the honorable body of which you are a member. 
" Without entering into any other circumstances of my case. 
" thus much is without dispute; — that without trial or any judi- 
" cial process, I have, by military force, been driven from the 
" possession of a real estate, of which I was the bond-Jide 
" purchaser, for a valuable consideration, from a person in pos* 
** session, and under a title recognized to be good, by .the sen 
" tence of a competent tribunal, judging in the last resort; — that 
" I am an American citizen, and have never done any thing to 
" forfeit the rights to which that quality entitles me: and that the 
" United States being in possession, I have no remedy at law. 
"Whether the law of 1807, authorizes the proceedings 
" against me or not; or whatever were the motives of those 
" proceedings, my case is equally one of primary public con- 
" cern, and is that of every individual in the community, for 
" no one has any legal security which I had not. If the law 
" authorizes such proceedings, it is unconstitutional; if it do 
" not authorize them, the misconstruction ought to be remedied. 
" I might therefore, sir, without presumption, claim that inter- 
'* ference, as a matter of the highest public duty, which, in my 
" present situation, I am content to solicit as a private favor, 
" Deprived of a fortune that would place me in a state of inde- 
" pendence, I am, by the act of the government, reduced to 
" poverty, and exposed to the pursuits of creditors whose pa- 
iC tience will, I fear, be exhausted by further delay: twice obliged 



150 

" to leave my profession and place of abode, my means are ex* 
" hausted, and my business lost. Under these circumstances, sir, 
" I am persuaded that you will not suffer the trifling inconve- 
" nience of a few hours delay, to balance the utter ruin of a fellow 
" citizen, who cannot trace misfortune to any imprudence of his 
*' own, and who only asks that fair trial which the constitution, 
" you have sworn to defend, secures indiscriminately to all. 

« EDW. LIVINGSTON. 

"23d June, 1809." 

If there be any man who can join Mr. Jefferson's merriment 
at the terms of this letter, I do not envy that man's enjoyments,' 
and would much rather be the sufferer under the wrongs there 
detailed, than the one, however high his office, who could first 
inflict and then deride them. 

I have digressed, and return to the course of my argument. 
Congress cannot, then, from the nature of their organization, 
from their necessary attention to more important business, oc- 
cupy themselves with the investigation of titles; but if they had 
the power, whence do they derive the right.''— certainly not from 
the words of the constitution, — that, as we have seen, gives the 
judicial power to a separate body. Not from the practice of 
other nations, because we have seen, that in all others, even of 
the most absolute form, means were provided to prevent the 
nation being both party and judge, — not from any necessity, be- 
cause, if that were the case, it would exist in other nations as 
well as ours; but practice seems to be resorted to (p. 68.) and 
the principle that the nation cannot be sued. That the nation 
cannot be sued does not prevent relief being granted, when the 
action is in rem. — I cannot sue the United States for a debt 
they owe me, I cannot attach their duties in the hands of the' 
collector, or serve an execution on the monies in the treasury,* 
but I may form my action for the recovery of my land, by a 
process in rem. The public, then, like any other claimant, may 

* Hence arises the necessity to petition in case of money claims, but wise 
men have thought that the public would not lose by establishing some perma- 
nent tribunal to take cognizance of them; in most instances the wages of 
members while the justice of the demand is discussing, amount to more than 
the debt: one for the value of a horse I found when I came into Congress in, 
1795. I left it there in 1801, and I believe it was finally decided ten years af- 
terwards. The discussion of this claim alone must have cost at least 25000 
dollars. In a Court of justice the costs would not have been one hundred. 



151 

assert their right, and the judges will determine on it, without 
any reference to Congress, and so far I misconceived my remedy 
while I was vainly seeking relief from the legislature. This 
course of proceeding is not new nor beneath the dignity even 
of our government. It is every day's practice in the courts of 
admiralty; should a collector or any other officer seize a vessel 
as belonging to the United States, a libel would be filed by the 
proprietor, and it most certainly would not be dismissed on a 
suggestion that it was the property of the United States, their 
title must be set forth and tried in the same manner as the title 
of an individual.— Where then is the difference if I direct my 
action against the land; must not the public as well as any other 
claimant set forth their right and recover or lose, according to 
the strength or weakness of their title. If this reasoning be just, 
Mr. Jefferson's ideas on this head are totally unfounded, and 
Congress have neither the physical power, from their organiza- 
tion, nor the constitutional right to try titles, and of course there 
is no check to that assumed by the President of judging what 
lands belong to the public or not; he acts without appeal, with- 
out control and without responsibility, and I, therefore, under 
our government, am warranted in my conclusion that he acts un- 
constitutionally. 

I have proved, therefore, under this head; 

1st. That my case is not one embraced by the purview of the 
act of March, 1807. 

2. That if it were, the directions of the act have not been 
pursued. 

3. That as construed and acted under by Mr. J., the act is 
unconstitutional. 

All these conclusions were so apparent, that in a few hours 
after the president's mandate had been received at New Orleans 
I had stated the substance of them in a petition which I pre- 
sented to the superior court, praying them to enjoin the marshal 
from executing it. The order to that effect was given, not as 
Mr. Jefferson (with his usual attention to fact) asserts, by a 
single judge, but by the two who composed the court, and on 
motion in open court.* This order was served on the marshal, 

• I should not notice this little aberration if it were n;t wilfully irade. My 
petition with the signature of the tw* judges was before the president; it ifl 



152 

who disregarded it; and his disobedience is justified by Mr. J. 
by reasoning which involves in it an attack on the regularity of 
the proceedings and the judgment by which Gravier was quiet- 
published p. lxi. of the case for opinion of counsel, and I insert it here at length, 
that the reader may judge for himself. 

To the honourable, the Superior Court of the first District of the territory of 

Orleans. 
The petition of Edward Livingston, of the city of New Orleans, counsellor at 

law, 
Humbly sheweth, 
That John Gravier by virtue of sundry grants from the crown of France, and 
divers mesne conveyances under them, in the month of November, in the year 
of our Lord, 1805, was possessed of and entitled to a certain farm, or parcel of 
land, part of which had been previously laid out into streets and lots, and was 
and is known by the name of the Suburb St. Mary: That the said farm had, for 
sundry years past, increased by an alluvion formed by the river Mississippi, 
which is the front boundary of the said plantation, and which by the laws of 
the land, became (in proportion as the same was formed) the property of the 
said John Gravier, and of the several proprietors of the said plantation under 
which he held, and was incorporated into the body of the said plantation, and 
by the laws aforesaid, was so held as part of the same. — But the said John 
Gravier, and those under whom he claims, have uninterruptedly held the said 
nlantation, of which the said alluvion so formed a part, for upwards of eighty 
years, until some short time previous to the month of November, 1805, when 
the mayor, aldermen and inhabitants of the city of New Orleans, having dis- 
turbed him in the enjoyment of the said alluvion, he presented his petition to 
the superior court, to be quieted in his possession, and relieved against the 
said disturbance, and that such proceedings were thereupon had, that the said 
Superior Court on the 23d of May, 1807, pronounced the decree, a copy 
■whereof is hereunto annexed, in pursuance of which decree the said John 
Gravier was put in peaceable possession of the said alluvion, and the said 
mayor, aldermen and inhabitants were perpetually enjoined from disturbing 
him therein; and your petitioner shews that since the rendering the said judg- 
ment, he hath purchased from Nicholas Girod, and the trustees of Peter Dela- 
bigarre, under the title of the said John Gravier, and from the said John 
Gravier himself, in all, for the sum of eighty thousand dollars and upwards, all 
that part of the said plantation and alluvion, which is bounded on one side by the 
road, and on the other by Mississippi river, and extends from the limits of the 
city to the street called Rue Julie, of which your petitioner was put in possession 
and on which he has expended very large sums in improvements, and particu- 
larly in making a canal and levee, which are nearly complete: That your peti- 
tioner is informed, and verily believes, that the president of the United States, 
being ignorant of the true circumstances of your petitioner's title, but insti- 
gated, as he believes, by some malicious • '^representations of your petitioner's 
enemies, has given directions to F. L. B. Dorgenoy, the marshal of the district, 
to remove your petitioner by force from the said piece of land, so purchased 
by him as aforesaid; and that under colour of an act entitled " An act to pre- 
vent settlements being made on lands ceded to the United States, until autho 
rised by law/ ? which law, as your petitioner is advised and believes, cannot 



153 

ed in his possession, as well as the issuing the injunction to 
prevent the execution of the mandate. 

The decree of the court, he contends, is a nullity, and is void 
for three reasons. 

1. Because the United States were not a party. 

2. Because the court had no jurisdiction of the subject of the 
suit. 

3. " Because it was the result of a process and a course of 
proceeding and trial belonging to a court whose powers they do 
not possess by law." 

The two last of these objections affect the powers of the court, 
and (should they be well founded) render the judgment void as 
to all the world. 

apply to your petitioner's case, as by a reference to the said law will more fully 
and at large appear. 

That if your petitioner is dispossessed at this season of the year, the greatest 
injury will result to him not only by the destruction of the unfinished works, 
by the annual inundation which may now in a few weeks be expected, but also 
by the failure of many contracts he has formed, and by the loss of the revenue 
arising from his canal and basin, for the next year. 

And your petitioner shews, that the navigation of the river will be greatly 
mpeded by the half finished works, and that the greatest danger is to be 
dreaded to the health of the city from the existence of a temporary dyke 
which it was your petitioner's intention to have removed prior to the rising of 
the waters — Wherefore and inasmuch as the said order must have unadvisedly 
issued, as the same is contrary to the treaty by which this country is ceded to 
the United States, to the laws thereof, and to the constitution, and particularlv 
to that article which declares that no private property shall betaken for public 
use without just compensation; and also in direct violation of that part of the 
ordinance for the government of this territory, which directs that no man shall 
be deprived of his liberty or property, but by the judgment of his peers, or the 
law of the land. 

May it please your honours to enjoin the said F L- B. Dorgenoy, marshal, 
from executing the said order, and to grant to your petitioner such other re- 
lief as the nature of his case may require. 

ED W. LIVINGSTON. 
Signed and sworn to in open court, 
January 25th, 1808. 

J. W. SMITH, Clk. 
Let an injunction issue agreeable to the prayer of the petition. 25th ja 
nuary, 1808. 

GEO. MATTHEWS, Jun. 
JOSHUA LEWIS. 
1 hereby certify that the foregoing is a true copy of the original petition an»< 
oarder on file in this office. 

J.W. SMITH, Clk. S. C. 
March 28, 1808. 

U 



154 

The first, it" the United States were a necessary party, will 
render ir void as to them, but good against all others who were 
parties to the suit. 

I have admitted that the United States, if they claimed an in- 
terest in the land in their own right or for another not a party 
to the suit, would not be affected by it. The law cited by Mr. 
Jefferson is a first principle in the civil, and, as far as my know- 
ledge extends, pervades every other code. But the case would, 
I think, be different, if the United States claimed not for their 
own use, but for that of persons who were parties to the suit.— 
When once a contest is decided by a sentence of the proper 
tribunal, regularly judging in the last resort, — that decision is 
final, it becomes res judicata; for, it is the interest of the com- 
monwealth that there be an end to litigation, " interest reipub- 
licce ut sitjinis litium;" and therefore though the judgment be er- 
roneous it must stand. — The principle cited by Mr. Jefferson, is 
an exception to this rule— -the res judicata does not bind those 
who were not parties to the suit; and the reason is, that they had 
no opportunity to defend their rights. But if the person applying 
for the benefit of this exception in order to open the judgment, 
claims no right for himself, but only asserts it for the benefit of 
another who was a party to the suit, and had an opportunity to 
defend his rights and did defend them, then the reason of the 
exception failing, the exception itself must fail with it. Cessante 
ratione, cessat et ipsa lex. 

To apply these principles to the case before us: The corpora- 
tion of the city of New Orleans were parties to the suit in ques- 
tion; they defended their rights, they were heard, they set up, 
in a motion for a new trial, that very title in the United States 
which is now contended for, as a bar to the plaintiff's recovery. 
On a full hearing the court determined against this claim, en- 
joined them perpetually against asserting it, and quieted the ad- 
versary possession. Now let us examine what is the claim of the 
United States. If on their oxvn account, I admit they are not 
barred; if for the city of New Orleans, I contend they are. The 
purpose for which an act is done, is to be gathered from the de- 
clarations, either oral or written, of the actor, or from his con- 
duct. Where the public is the actor, the declarations and conduct 
of their representative in the act are to be looked to; the presi- 
dent in this case was, as he says, the agent of the United States". 



155 

What were his declarations, and what was his conduct.' Imme- 
diately after he had notice that his orders had been obeyed by 
the marshal, he sent a message to congress, which he transcribes 
p. 77 of his work. Speaking of this property he says: ** It has been 
used immemorially by the city, to furnish earth for raising their 
streets and court-yards, for morlar and other necessary purposes, 
and as a landing or quai," Sec; he next states as an allegation that 
the tide, originally in the former sovereigns, was never parted 
with by them, but was retained by them for the use of the city 
and province, and consequently has now passed over to the 
United States. And he adds; "Until this question can be decided 
under legislative authority, measures have been taken according 
to law, to prevent any change in the state of things, and to keep 
the grounds clear from intruders." Here is no allegation whatever 
of any beneficiary interest in the United States; on the contrary, a 
prescriptive title to the usufruct in the city of New Orleans, and 
an allegation of a mere trust title in the former sovereign, to 
which the United States have succeeded; and the intent with 
which the possession was taken, is plainly expressed to be for 
the use of the city. It was (says the message) to prevent any 
change in the state of things. — What was the state of things al- 
leged? Why, the use of the property in the city. The president's 
message, then, as clearly as language can express any thing, tells 
us that the United States claimed nothing for themselves, every 
thing for the corporation of New Orleans. — It does more; it 
informs us, what is exactly the fact, that a court, which I shall 
shew to be a competent one, having decided on a question of 
title, the president of the United States interposed his executive 
authority to correct the errors of the judiciary, and seized the 
property in question to restore it to the losing party; for he tells 
congress: " This (the batture) having been claimed by a private 
individual, the city opposed the claim on a supposed legal title 
in itself, but it has been adjudged that the legal title was not in 
the city." Here, then, is an acknowledgment that judgment was 
rendered against the claims of the city, and this passage, taken 
in conjunction with those I have quoted, amount to this: The 
city have a title to the use of this property, they have used it 
immemorially; it is therefore theirs by prescription — but an in- 
dividual has claimed it, and the court has wrongfully given judg- 
ment in his favour; I have therefore turned this individual out 
«f possession in order to restore that of the citv, in other wor$s 



156 

to prevent any change in the state of things. On this supposition 
alone of a claim for the use of the city, can we reconcile- Mr. 
Jefferson's assertions pages 63 and 76, that after *he passage of 
the territorial law, it was in my power to resume my works, by 
obtaining permission from the jury, and that had I obtained that 
permission it would have been respected by the national execu- 
tive. Had the seizure been for the use of the United States, how 
could a compliance with any territorial regulations enable me to 
continue the occupation of the property of the United States? 
How could the national executive have had so much respect for 
the permission of a parish jury, as to suffer the public lands to re- 
main in the hands of an intruder? It is clear, therefore, from all 
these declarations that the agent of the United States did not seize 
for their use but for that of the defendants in a suit that had been 
decided. His acts speak the same language. From the time of my 
dispossession to the present moment (with a short interval of a 
few days, during which I resumed the possession in the fall of 
1810) the United States have made no other use of the property 
than to keep me out, and suffer the city to enjoy. It would have 
brought, if sold, some hundred thousands of dollars into the 
public treasury, yet no attempt has been made to sell; if leased, 
it would have produced a rent proportionate to such a capital, 
yet it remains unimproved. The city draws a great annual re- 
venue from the wharfage, digs up the soil when the river re- 
tires, and, until it was destroyed by the last year's hurricane, 
occupied by their guard the house I had erected, though the 
United States hired buildings for their troops. — All this con- 
duct coincides with the declarations of the executive and plainly 
shews for whose benefit he acted — and as the rights of that body 
have been already decided on in a cause to which they were 
parties, the question as to them can never be legally revived 
either by themselves or others for their use. Until therefore the 
United States shall assert some claim of title for themselves, 
not ^fiduciaries for the party which is concluded by a former 
judgment, that judgment binds them. 

2. But the court had no legal cognisance of the case, having 
no jurisdiction over the subject of the suit, — and to prove this 
we are referred to p. 68, where I find it stated expressly, that 
" so long as the nation holds lands in its own possession, so 
long they are under the jurisdiction of no court but by special 
provision;" which special provision, it is contended, is not 
made in the United States, but that when they come to the 



157 

possession of individuals, then the courts are open for the dis- 
cussion of contending claims. Now, as Mr. Jefferson in his 
message and elsewhere in his book, tells us that the city of New 
Orleans were in possession, he excludes that of the United 
States, and shews a case in which bv his own acknowledgment 
the courts may legally decide on the title. I think this a conclu* 
sive answer to this head of objection; there are others which I 
have been obliged to anticipate, to which I refer the reader.* 

But it is urged, 

3d. That the judgment in the case of Gravier, as well as the 
injunction issued against the execution of the president's' man- 
date, are void, because " They are the result of a process and 
course of pleading and trial belonging to a court, they (the 
territorial court) " did not possess by law." — In support of this 
objection we are told, that by an ordinance of Congress of the 
13th of July, 1787, made for the then territory of the United 
States N. W. of the Ohio, but extended to Louisiana shortly 
after the cession, it was provided that there should be in that 
territory a court consisting of three judges, who should have 
" common law jurisdiction," thus excluding, by a necessary im- 
plication, the powers and forms of proceeding of those courts 
which are known in England and in the United States by the name 
of Courts of Chancery, and in our system of jurisprudence are 
contradistinguished from those which proceed according to the 
course of the English common law. Thence Mr. J. argues, that 
the superior court of the territory of Orleans, having no chan- 
cery powers, could neither issue an injunction, nor render a 
decree to quiet a possession, nor try a cause without a jury. 

This is, evidently, a play upon words, and the whole quibble 
turns upon the words ** chancery" and " common laxv" Mr. 
Jefferson confesses, (p. 74) that, the latter, as applied to Loui- 
siana, do not mean the " common law of England" but " the 
common law of this land" which he acknowledges to be the 
Roman r or civil law. This is all I desire. I acknowledge 

• Ante, p. 145, et seq. 

■J- One of the first acts of the territorial Court, after the transfer of possession 
to the United Stales, was a solemn determination that the change of govern 
ment operated none in the municipal laws. This determination has been uni- 
formly acquiesced in since, and has lately received the sanction of the supreme 
court of appeals of the state. The common law of Louisiana is therefore esta- 
blished to be the civil or Roman law; and the constitution of this state con- 
tains a special dause expressly intended to guard against the introduction of 
any other system of civil jurisprudence 



m 

that the superior court of Orleans is not a court of chancery, 
and that it has no powers whatever as such. Mr. J. acknow- 
ledges that it possesses the powers of a court of civil lawj 
now, therefore, the only question seems to be, whether such 
a court has the power to issue an injunction, or quiet a pos- 
session, and whether it usually proceeds with or without a 
jury. Mr. Jefferson triumphantly asks: " Was the establish- 
ment of the French and Roman laws an establishment of the 
chancery system of law?" — The answer is obvious.— It was 
so, as far as those several systems are similar, but no farther. 
He again asks: " Will it be said that the Roman and chan- 
cery laws, for instance, were the same?" If Mr. Jefferson does 
not know that the English chancery system was borrowed from 
the civil law, and that it professedly pursues its forms and 
modes of proceeding,* I must assent to what he acknowledges 
in several parts of his justification, that he is not deeply versed 
in the Roman, to which I think I may add, at least, the English 
chancery system of jurisprudence. But, however that may be, the 
question is not here whether the rules and modes of proceeding 
of the courts of civil law and those of chancery courts are the 
same, but whether the forms pursued in the case before us were 
really those which are prescribed and pointed out by the " com- 
mon law of the territory of Orleans" (which is acknowledged to 
be here the rule) or in other words by the " Roman civil law?" 
And, now, it is easy to shew, that there was no need in this 
case to search or adopt the precedents of an English or Ameri- 
can court of chancery, and that neither the action brought by 
Gravier, nor my petition for an injunction against the marshal 
were derived from that source; but that they were suits and 
modes of proceeding as well known and as strictly defined in the 
civil, as those of trover and ejectment are in the common law. 

It is a fact well known, not only to professed civilians, 
but to all those who are tolerably conversant in that system, 

* This is so well understood in the United States, that by an act of Congress, 
passed on the 29th of September, 1789, it was expressly enacted, " That the 
forms and modes of proceeding in causes of equity (chancery) and of admiralty 
and maritime jurisdiction, should be according to the course of the civil law." — 
This statute has, indeed, been since modified, and the forms of proceeding of 
chancery courts prescribed by more general words; (2 Laws U. S. 103), but it 
has never been doubted or denied, that those forms are derived from, arid 
in general conformable to those of the Soman to<a. 



159 

that all those objects which are attained after great expense 
and much difficulty in the English courts of equity, are effected 
without the complex machinery of different tribunals by the 
simple practice of the civil law, by the division of actions into 
those stricti juris, and bona? fidei, and the application of the 
pr toriumjus to their circumstances; but that disquisition is here 
unnecessary, for the proceedings in question belong to the most 
ordinary class, in the code of practice. 

Interdicts were edicts made by the praetor, declaratory of 
the remedy he would give in certain cases, chiefly to preserve 
or restore possession. They were also his decretal orders apply- 
ing an equitable remedy to the case before him, and in a third 
sense the term was commonly used for the action which is 
brought under the praetor's edict.* Thus we say the interdict 
unde vi forbids illegal force, here it means the edict. The judge 
Tendered an interdict against the use of the servitude, here it 
means the decretal order which may be either interlocutory or 
final. Titius prosecuted an interdict unde vi against Caius to re- 
cover his possession, here it means the action. f 

These interdicts were prohibitory, restitutional, or exhibitory. 
Of the first kind were those by which the praetor forbid the com- 
mission of any illegal act which was apprehended. By the 
second a remedy was given for acts already done; the third was 
a process analogous to the writ of habeas corpus, obliging the 
party having a free person in his custody to exhibit him. 

All these remedies were applied by a process, which, to avoid 
the equivoque that would arise from employing, as in Latin, the 
same word to signify the edict and the process under it, we call 
in English an injunction. In the prohibitory and exhibitory in- 
terdicts it issues at the commencement, in the other at the end 
of the suit, and so far in the former instances, it is exactly 
analogous to the chancery injunction of England. 

The suit brought by Gravier against the corporation of the 
city, was an interdict of the prohibitory kind; he was in posses- 

* Vide Dig. de Interdict: et Calvini Lexicon, passim- 

f Interdicti appellatio obscura est iis, qui rem ex antiquitate non satis fideli- 
ter perpendunt; ecce autem, sicut duplex censetur bonorum possessio, videlicet 
edictalis et decretalis; it& docendi gratia, statuimus duplex hac consideratione 
interdictum: scilicet edictale, quod praetoriis edictis proponitur, ut sciant 
omnes ea forma posse implorari; et decretale, quod praetor pro re nata im- 
idorantibus decrevit. Oldendorp, cited by Calvin. 



160 

sion, the defendants had disturbed him, by trespassing on his 
property and setting up a claim to a servitude or commonage on 
it: his remedy was clearly pointed out by law, without any need 
of chancery aid; he brought a suit under the praetorian edict uti 
possidetis and obtained the interdict or injunction of the magis- 
trate, forbidding the defendants from continuing their disturb- 
ance during the continuance of the suit, and at the end of it, 
after hearing all parties on the question of title, the same order 
Was continued, or as we should express it accurately in English, 
the plaintiff was quieted in his possession, and the injunction 
was made perpetual. — The onlv illegality then, of the whole suit, 
is having translated interdictby the word injunction, and having 
used the familiar phrase quieting in possession, to express the 
very idea which those words were meant to convey. Those who 
are acquainted with even the rudiments of the civil law, will ask 
no authority for what I have asserted, but I wish to be justified 
by all, and I therefore state the nature of the action, and shew 
the law on which it is founded. 

" Hoc interdictum (uti possidetis") de soli possessore scriptum 
est, quem potiorem praetor in soli possessione habebat: et est 
prohibitorium adretinendam possessionem. 1 ' Dig. 43. 17. 1. s. 1. 
" This interdict is made for the possessor of the soil, for his 
possession is favored by the praetor; and it is prohibitory for the 
purpose of retaining the possession." Godfrey's note on this 
passage is: "in hoc interdictum venit ut reus desistat a turbatione 
praesenti et futura." "This interdict provides that the defend- 
ant shall desist from all disturbance at present and in future" 

" Hoc interdictum duplex est, et hi, quibus competit et ac- 
tores et rei sunt." " This interdict has a double effect, and the 
parties under it are both plaintiffs and defendants." Dig. 43. 17. 
3. s. 1. — From these authorities (and I might multiply them 
without end) it appears that there was a course of proceeding in 
force in this country, by which one who was troubled in his 
possession might apply for and obtain an order of the judge en- 
joining his adversary to desist from his encroachment, or in 
other words obtain an injunction, and that, after the title was 
determined, that order might be extended to all future aggres- 
sions, that is to say the injunction might be made perpetual. 

Now, this is exactly the course that has been pursued. Gra- 
vier being disturbed in his possession, by the city of New Or- 



161 

leans, commenced his suit, not by bill in chancery > as I shall 
presently shew, but in the manner prescribed by law for the 
prosecution of all suits. — He obtained an interdict directing the 
defendants to desist from trespassing on the lands in question, 
pendente lite: — the defendants appeared, denied the plaintiff's 
possession and his title, and set up one in themselves; — the case 
was heard, and the court being of opinion that Gravier had both 
the possession and the title, ordered the interdict to be made 
perpetual, and declared that he should be protected against the 
defendants in the peaceable enjoyment of the premises forever. 
Now, what is the objection to this course of proceeding? Why, 
truly, the judges have rendered their orders and decrees in Eng- 
lish! They have translated interdict by injunction, and have 
quieted a possession, instead of ordrring an interdict against fu- 
ture disturbance. The vivid imagination of our author was 
fired with the illegal use of chancery terms. Anxious to sup- 
port the constitution, and keep every branch of government 
except one within the bounds of their duty, — he takes pains to 
prove to the judges that they are not chancellors, reproaches 
them bitterly and indecently for " shuffling themselves into the 
place of the jury," and raves about chancellor Waltham, and 
"his subpoena, just as if the subpoena had been used in tht case; 
nay, he actually asserts it as a fact, when it exists no where but 
in the series of fictions which he calls " the proceedings of the 
executive." — The same law which authorised the granting and 
continuing the injunction in the case of Gravier, justifies the 
Court in the order given to the marshal on my application. — I 
was in lawiul and peaceable possession, and I knew that an ille- 
gal mandate had been given to deprive me of it; mine, therefore, 
was the very case provided for by the interdict uti possidetis } 
and it is their having dared to grant me the benefit of the laws 
of my country, that has drawn upon the judges the ire of the 
President. 

They granted the injunction, as it was their duty to do; the, 
marshal, disregarding that which he owed to the laws, and 
supposing himself, as he has stated, bound to the same obe- 
dience which a soldier owes to his officer, disobeyed the in- 
junction, and, by force, executed the orders of the president. 
Here was a scene which, for the honour of my country, for its 
most sacred interests, I pray never to see repeated; an executive 

X 



162 

officer carrying into effect an executive mandate, in contempt of» 
the solemn decrees of the judiciary, and the president ordering 
the regular military force to aid him in the accomplishment of 
this outrage. — Let it not be said, that he could not know that the 
court would interpose — but he did know that the court had in- 
terposed: he had seen their judgment, and it was in direct defiance 
of this judgment that he gave the order. Besides, he afterwards 
knew the act, and made it his own by his ratification. He even now 
justifies it, and though all the probable consequences were stated 
to him of a conflict between the authorities, he heard them in 
sullen silence.* There is then as little justification for Mr. J. as 

* After I had received the president's determination, m 1808, not to grant 
me any relief, I wrote to the secretary of state the following letter: 

Washington, July 13, 180ft. 
Sir 
In the letter I had the honour to address to you on the sixth of May last, I 
offered propositions, which, after making every allowance for the illusions of 
self-interest, I cannot but think highly evincive of the justice of my claim.— 
They were also intended to shew the confidence I then felt, that the president 
would seize the opportunity they offered, of reviewing a determination made 
on an exparte statement, which I have offered, and am ready to prove false in 
fact and erroneous in law. 

It having been deemed inconsistent with official duty to examine my proofs, 
or to listen to my argument, I must at present content myself with the con- 
sciousness of having done every thing that a sense of justice, and the extreme 
of moderation, could require. The representatives of the people, to whom I am 
referred, must determine whether they are competent to the trial of a title, 
and whether they intended to invest the executive with the power of revers- 
ing the decision of a court, of opposing the execution of its decrees, and de- 
priving a citizen of his property, without even the form of a trial, or affording 
him the means of defence. 

I must however, sir, be permitted to draw your attention to another cir- 
cumstance in this business, which is of the utmost consequence not only to 
me, but to the territory in which I reside. From the verbal communications 
which I had the honour to make to you at this place, supported by a copy of the 
record, which I delivered for the president's perusal, it appeared that when I 
first heard a warrant had been received by the marshal to divest me of my pro- 
perty, I applied by petition to the superior court who, on hearing, granted me an 
injunction, ordering the marshal to desist from the execution of the warrant; 
but that this officer, supposing the authority of the president paramount to 
that of the court, proceeded to execute his orders. For this contempt offered 
to the highest judicial authority in the country, I might have obtained an at- 
tachment and an order for restitution; but I was unwilling to exhibit to the in- 
habitants of the territory the degrading spectacle of a court unable to execute 
its decrees, or the afflicting one of a violent struggle, perhaps a bloody conflict 
between the ministerial officers of judicial and executive power. Persuaded 



163 

there is foundation for the charge, that the court assumed illegal 
powers; thev proceeded in the beaten track ot ancient usage and 
established law; he deliberately and violently opposed their legal 
course of proceeding. 

But no jury was called for the decision of the cause! The 
judges shuffled themselves into the place of the jury! They have 
41 abolished the trial by jury, pledged by the ordinance to the 

that the warrant had been issued in consequence of some gross misrepresen- 
tations of facts, I desisted from any further prosecution of my appeal to the 
laws, and thought that propriety required me to suspend any to the public, until 
I should have endeavoured to rectify the errors under which I supposed the 
president had acted. With this view I applied myself silently and assiduously 
to the removal of those pecuniary difficulties, which this unexpected change 
in my fortune had produced, and, as soon as this was sufficiently effected, 
came on with a hope bordering on conviction, that when heard (which I con- 
sidered as a matter of course) I could demonstrate to any reasonable man, not 
only that I had been hardly dealt with in the mode of proceeding, but that 
there was not even a colour of title in the United States to the land of which I 
had been deprived. As however it has not been deemed expedient to admit 
even a possibility of error or misreprentation; as the appeal which I have made 
to the candor of the executive has failed, it may become necessary for me to 
prosecute that which I have made to the justice of the courts. But this state- 
ment will shew you, sir, how important it is for me to ask, which I now most 
respectfully do, whether it is the intention of the president that the marshal 
shall use the force placed at his disposal to oppose the decrees of the territorial 
judiciary? If, as I hope, and would wish to believe, the ordinary course of 
justice is not to be interrupted, I have only to request that orders, conforma- 
ble to such intentions, may be sent to the marshal, whose conduct has shewn 
that he is under a contrary impression — and it would be desirable to avoid that 
opposition to which his mistaken sense of duty might lead. But if the presi* 
dent's warrant is to be supported by force against the process of the court, I 
ought to be apprized of it, that I may then determine whether the obligation I 
owe to my family or my professional duty, to a widow and two orphans, whose 
rights are committed to my care, will permit me to sacrifice their interest, in 
order to preserve the peace of the territory; or whether I should assert my 
claims, and leave the responsibility where it ought to rest. 

If the United States have no title to the land, no reproach can attach to me 
for any event that may happen, and I am prepared to risk every thing on that 
question, whenever it shall again be decided by impartial and enlightened 
men. Being about to depart in a few days, and wishing to carry the president's 
determination on that point, I beg that, as soon as may be convenient, you will 
favour me with an answer, and at the same time return the copy of my petition 
for an injunction, whicli I had the honour to deliver you at Washington. 
I have the honour to be, 

Respectfully, &c. 
(Signed) EDW. LIVINGSTON. 

To the part of the letter relating to the injunction, I received 710 a?irwe. r 



164 

people of the territory." " They took upon themselves to 
decide both fact and law, aware at the same time, that a 
jury could not have been found in Orleans which woul ! not 
have given a contrary decision."— These are serious charges. 
They affect the character of men whom Mr. J. calls respectable, 
though he attributes to them a conduct that would disgrace 
them for ever, of men whom he had invested with the highest 
judicial authority, and to whom it has been continued* by the 
representatives of the very people whose privileges he accuses 
them of having destroyed, and whose interest, he says, they 
have illegally sacrificed by this decision. 

When deceived by false appearances, such accusations are 
made under a belief of their truth, the author incurs the re- 
proach of precipitancy, and owes a reparation to those whom 
he has injured. — Where there is no proof, and he acts only on 
suspicion of the fact, his offence assumes a graver cast. But 
what name shall we give to his conduct, who knows that the 
charge he makes is wholly without foundation, who acts with- 
out proof and without suspicion, who repeats serious charges 
after he has seen their refutation, and knows that refutation to 
be just. 

I have shewn that the form of action as well as the process 
was in the usual routine of judicial procedure: that no chancery 
or other extraordinary jurisdiction was resorted to, and I now 
proceed to show, that this course did not deprive the defendants 
of an appeal to a jury; that if they declined it, it was the result 
of deliberation and choice; that there was no shuffling on the 
part of the judges, no assumption of illegal power, and that he 
who makes the charge had, at the time he wrote, under his eye 
the evidence of its falsity. 

The act of the 26th March 1804,f gave us our first form of go- 
vernment. On the subject before us its provisions are: §5. "In all 
cases, civil and criminal, in the superior court, the trial shall be 
by jury, if either of the parties require it." 

On the 2d March 18054 tne president was authorised to 
establish a government in Orleans, similar to that exercised in 

* Judge Mathews is one of the judges of the supreme court of appeals, 
and judge Lewis presides in the district court of the first district of the state 
of Louisiana. 

1 7 Laws U. S. 112. % Ibid. 281. 



165 

the Mississippi territory (except as is otherwise provided by the 
let -.'J giving to the inhabitants all the righis, &; ., secured by 
th< rdi nance of 1787. But the fourth section declares, " That 
all laws in force in the said territory (Orleans) at the com- 
irc> orient of the act, and not inconsistent therewith, shall 
rit in force until altered, modified or repealed bv the 
legislature;" and the sixth repeals, after the first November 
then next, all such parts of the former act, as are repugnant 
to the present act. — The ordinance, which is thus made the 
constitution of the new territory, secures to the " inhabitants 
the benefit of the trial by jury" — This benefit, it was sup- 
posed, would be secured to them, if they had the option of 
recurring to it; and that part of the law of 1804, which directed 
that, in civil cases, either party might have a jury trial, if he re- 
quired it, was not inconsistent with the provision of the ordi- 
nance, which secured the benefit of a jury trial to the inhabitants, 
and that, therefore, this clause was not repealed. — Under this 
idea the territorial legislature proceeded to regulate the pro- 
ceedings in the superior court. By the first section of the 
act passed for this purpose,* all suits are directed to be " com- 
menced by petition addressed to the court, which shall state the 
names of the parties, their places of residence, and the cause of 
action, with the necessary circumstances of places and dates, 
and shall conclude with a prayer for relief adapted to the cir- 
cumstances of the case." — This was exactly done in the case of 
Gravier, and even if I had not shewn that the form of action 
adopted had been previously known to the civil law, this provi- 
sion in a positive statute must have put an end to the cavil. — 
The fifth section enacts, that if the " Defendant wishes a trial 
by jury ," his " petition shall conclude with a prayer to that ef- 
fect;" and if any plaintiff requests a trial by jurv, such request 
shall be lodged in writing with the clerk, within three days after 
receiving notice of the filing of the defendant's answer," — and 
thereupon the clerk is to issue process, and the sheriff is to 
summon the jury.-— As there is no difference in the mode 
of commencing causes, all of whatever nature being by petition, 
the provisions relative to the trial by jury are applicable to all; 
whenever a fact is in issue, either of the parties may refer its 

* 10 April, 1805. 1 Orleans Laws, 210. 



166 

trial to a jury; and it is, therefore, only in cases where both pre- 
fer the decision of the court, that the court decides. This now 
is, and always since the passage of this law has been the uniform 
unquestioned practice of the court. The corporation of the city 
of New Orleans, on being served with a copy of Gravier's pe- 
tition, were at liberty to demand a jury or submit to the decision 
of the court. They had time to deliberate until the filing of their 
answer. They did deliberate, and, with the advice of their 
counsel, preferred the latter mode of trial, as the most favoura- 
ble to their interests. — -Does not this plain exposition of the law 
shew that there is not the slightest foundation for the invective 
and bitter reproach with which the judges are assailed on this 
subject? — Can any one acquainted with the laws I have cited, for 
a moment question the regularity of the proceeding? — But Mr. 
Jefferson was acquainted with them. Those from the statute 
book of the United States were passed during his presidency; 
he approved them; he quotes them in the very page that contains 
his philippic against the judges. The territorial law also passed 
during his presidency, and must have been officially transmitted to 
him by the governor. Nay more, his attention was called to them, 
and to the refutation which they give to the calumny he has re- 
vived; it was called to them by a publication which I have said was 
under his eye when he wrote. The same argument had been 
thrown out, not as I recollect in any publication, but in sugges- 
tions calculated to influence the ignorant: I had answered it in 
a publication made first in the papers of New Orleans, and 
afterwards repeated twice, first in the appendix to my address, 
and a second time in one of the arguments of Mr. Duponceau-* 
Both these publications were in Mr. J.'s hands, and to the first 
of them he frequently alludes in the course of his justification. 
This is the extract: 

" But the cause, — says the voice of public clamour, — the 
<l cause was tried by the court without the intervention of 
" a jury. None but the grossly ignorant, or the perversely 
" wicked, can make this a ground of accusation against the 
" plaintiffs. — The trial by jury, in civil cases, is a privilege 
a which by the laws of the territory either party may claim at 
" their pleasure. When neither demand it, the privilege is of 
9 course waved. Here the defendants have not even inadvert- 

* Review of the cause of the New Orleans Batture, &c Philad. V609, 



167 

u ence to plead; the mode of trial was a matter of deliberation 
" and choice, for I have seen the draft of an affidavit which 
"judge Moreau, the defendants' counsel, told me he was about 
" to make, in which he gives a reason why they did not chuse 
" to ask one; and this reason, if I recollect aright, was that they 
" apprehended they would not be permitted to have a jury com- 
" posed of inhabitants of the city (that is to say of the parties 
" to this cause!) What would have been said of the defendants 
" if they had testified even a desire to have persons interested 
" in their purchase, not only examined as witnesses, but sworn 
" as jurors in the cause? Nothing, indeed, could have been add- 
" ed to the obloquy which has been cast upon them; but if such 
" had been their conduct, I should candidly confess there is 
" little of it they would not have deserved." 

Orleans Gazette, Nov. 16, 1807". 
This publication, let it be remembered, was made in 180/, 
in the Gazette of New Orleans, it had been twice republished; 
if the law or the practice of the court had been misrepresented, 
would not some reply have been made? if the communication 
made by Mr. Moreau had been misunderstood, would not 
some explanation have been given? Not a word has been or 
could be said on the subject. The law was truly stated, the fact 
was well understood; and with the knowledge of both, Mr. J. 
has not scrupled to wind up his work by repeating the serious 
charge which they fully refute. 

The task I had imposed on myself is now finished, and I 
commit with satisfaction my cause to the public. It is not one of 
mere interest either to me or to my adversary; as he has 
» managed it, the question involves considerations of higher 
moment to us both: I am an intruder on the public, or he an 
invader of private rights. — The only true enquiries were, Was 
the land in question the property of the United States? Had 
the president a right to seize it if it were? A dignified defence 
would have been confined to the support of an affirmative answer 
to these propositions; — Innocence would have rejected the 
doubtful advantage to be derived from even a just attack; Inte- 
grity and Honour would have disdained the aid of unjust accu- 
sations, however plausible; Magnanimity would have scorned 
the effect of an appeal to popular prejudice: — but in this case we 
look in vain for these results. All these means, however un- 
worthy, are resorted toj and in order to prove that the land be- 



168 

longed to the public, and that I was rightfully expelled at the 
point of the bayonet, the public are told: 

1 . That the premises did not belong to John Gravier, under 
xvhom 1 claim , but to him jointly with his brothers and sisters. 

To this I have answered that if true it forms no justification; 
that the property of the brothers and sisters ought to have been 
as sacred as that of the seller to me. 

That the fact is not true, that the whole of his deceased 
brother's estate, of which this formed a part, was inventoried 
and sold to John Gravier, and 

That the absent heirs have ratified the sale. 

2. That my counsels jirst suggested to Gravier the prosecution 
of a dormant claim. 

To this accusation I have replied that if the claim were just, 
I consider it as no reproach, to have given my aid to its or se- 
cution, and that to point out his rights to a client, is one of the 
first duties of an advocate. 

But that the allegation, whether it constitute a merit or a re- 
proach, is totally without foundation. 

That Gravier's ancestor, te n years before my arrival, so well 
knew his right to this property as to sell several parcels of 
it by public recorded acts. 

That Gravier himself, long before my arrival, had enclosed a 
very large portion of it. 

That, before the purchase in which I was concerned, two v- ry 
respectable gentlemen in the city, were in treaty for the same 
property, and 

That even before the cession the Spanish governor thought it 
necessary to procure Gravier's license, before he could make 
use of the ground for a public purpose. 

3. It is objected that Delabigarre's purchase was of a litigated 
right, and therefore void and champertous. 

To this also I have answered, that, if the charge were true, it 
gave no right to the United States, and that all the crimes he 
could heap on the memory of the unfortunate Delabigarre, 
would not lessen the weight of his own responsibility, in taking 
for the public that which did not belong to them. 

But I have shewn that the charge is unfounded as well as ir- 
relevant: 

Because Gravier was in actual possession of a part of the 
thing sold. 



169 

Because he had a constructive possession of the residue. 

Because no one had then heard of the only adverse claim, 
which now exists. 

Because the claim of the corporation was an illegal one, and 
has so been determined by a final judgment, and even by their 
own acknowledgement. 

Because, even if a just claim, as it was only of a servitude, 
the proprietor might legallv sell the soil. 

And I have shewn that the suit could only have been carried 
on in the name of Gravier, because the sale under private signa- 
tures amounted by the law of the land to no more than a cove- 
nant to sell. 

4. It -was asserted that if by the terms of his grant, Gravier 
was the owner of the alluvion, he had disposed of it to the pur- 
chasers of the front lots, by using the same expression in his 
sales to them. 

For the fourth time the answer was repeated, that if the 
fact was ascertained, it only changed the name of the person 
aggrieved, and that the offence of illegally taking the land, was 
as great if the title were in A, as if it belonged to B. 

But a complete refutation of the fact, was given by shewing 
that in general the front proprietors' deeds referred to a plan 
which made them limited and not riparious proprietors. 

That in cases where there was no such reference, and where 
the alluvion was really granted, I had become the purchaser and. 
united both titles. 

Preparatory to the discussion of the title of the United States, 
I have shewn from the geology of the country, the nature of its 
conformation and the characteristics of the premises in question; 
— the gradual formation of similar parcels of land, and the uni- 
form occupation of them by the proprietors of the adjacent 
soil has been proved, as well as the utility of the improvements 
I was making; and it was demonstrated from a review of the 
original grant, and the chain of title, that those under whom I 
claimed owned and possessed to the water's edge. 

The enquiry by which law the question of title was to be de- 
cided has been pursued, and strong reasons given to believe that 
the President erred in selecting the French rather than the 
Spanish code. 

But that taking the French laws to be the rule in this case* 

y 



170 

they give the alluvions not to the sovereign but to the adjoiaing 
prop ietors; and this is proved: 

By the opinion of their jurists, the decisions of their tribu- 
nals, and the formal recognition of the sovereign in the cele- 
brated Bordeaux case. 

I have shewn that the premises have no one characteristic, by 
which they can be denominated the bed or the beach of the river, 
and that if a part of them still form the bank, that bank is ao 
knowledged and proved to be private property. 

The distinction attempted to be taken between the right to 
alluvion in urban and in rural estates, has been discussed and 
proved to be without foundation. 

The nature of alluvial increase has been defined, and by its 
application to the premises in question, the fanciful derivations 
and reasoning created to shew that they could not be called an 
alluvion have been exposed. 

The rights of the public to the use of the bank for the purposes 
of navigation have been acknowledged, while the property of 
the soil has been proved to reside in me, and from the most 
convincing documents I have demonstrated that my works did 
not tend to interfere with, but on the contrary to facilitate that 
public use. 

The singular idea that the President of the United States is 
required or authorized to abate nuisances in the city of New 
Orleans, has been exposed to the derision it deserves, and the 
flimsy nature of this subterfuge has been shewn: 

By the words of his warrant of dispossession, which speaks 
of an intrusion upon public lands, not of the abatement of a 
nuisance — 

By the conduct of those who executed it, in removing the 
possessor and leaving the works which are supposed to be nuis- 
ances — 

By the awkward manner in which this plea is pushed forward 
for the first time in the last stage of the controversy. 

The existence of any nuisance has been denied, and the effi- 
ciency of local laws for its removal* had it existed, has been 
shewn. 

The assertion that all governments maintain the right of seiz- 
ing their own at short hand has been fully disproved by reference 
to the English, French, and Spanish laws; and it is shewn by a 
review of the principles of our own constitution, that they do 
not sanction the practice. 



171 

The authority assumed under the law of 1 80/, has been ex* 
ami.- d, mid the following conclusions have been drawn— 

That the case to which it was applied, comes neither within 
its letter nor its spirit. 

That even if its circumstances came within the purview of the 
law, some of the most material provisions of that law have been 
totally disregarded. 

And that if the law authorize the proceedings had under 
colour of it, the law itself is unconstitutional and void. 

The conduct of the territorial judges who rendered the sen- 
tence in favor of Gravier has been vindicated, and the charge 
of their having assumed illegal and unusual powers has been, 
shewn to be produced either by an utter ignorance of the law, or 
a culpable misrepresentation of it. 

Having thus laid my own title, and that of the United States 
before the public,— -having tested the proceedings of the execu> 
tive by the rules of positive law, the unbending precepts of the 
constitution and the unerring principles of free government— and 
having demonstrated those proceedings to be illegal, unconstitu- 
tional and oppressive; I shall now enquire what excuse there is 
in the plea of honest error, supposing it to have existed, and 
what grounds there are for believing that the motives were such 
as could inspire the conscious rectitude which is affected in the 
close of the work? 

First.— Error of judgment is no excuse to an executive officerf 
he must execute the laws at his peril— In this respect judicial 
and executive officers have a different responsibility; the judge, 
unless there be corruption or such a manifest breach of positive 
statute as supposes corruption, is not liable for a misconstruc- 
tion of law; hut a ministerial officer must execute the law at the 
risque of making good all damages arising from his misconduct 
or even his errors. 

A sheriff cannot justify the arrest of A, by proving that he 
took him for B, against whom he had a writ. 

The captain of a frigate shall not be excused from damage 
for bringing in a friendly vessel or one of his own nation, be- 
cause he thought it the property of an enemy.* 

* In cases where this excuse has been deemed good, there was always 80IOT 
default on the part of the captured, which led to the error. 



172 

Nay more: he shall not be excused, although in making the 
capture he shall have followed the express instructions of the 
President, if those instructions were not given according to 
law.* 

Mr. Jefferson shews more art than fair argument in putting 
the responsibility of the executive on the same footing with that 
of the members of the legislative and judiciary branches. — -They 
are widely different. The representative is only bound to pursue 
the measures he thinks right; he is under no obligation always 
to think right. The judge is to decide according to law where 
it is positive; according to his opinion of it where it is doubtful. 
The President has no such discretion, unless it be expressly 
givf n, and it cannot be given, under our constitution, in cases 
properly cognizable, as this is, by the judiciary, in cases of mewn 
and tuum as I have shewn this to be. There are cases, however, 
in which a discretionary power might be granted by law, and in 
which an honest error would excuse. — The legislature might, 
for instance, create an office, and direct that whenever the Presi- 
dent thought the officer had been guilty of malfeasance, he might 
remove him. — Here the President, believing in the ill conduct 
of the officer, might remove him; and, though the man should 
be innocent, the President would incur no responsibility,— but if 
the provision had been, that the President should remove in case 
of malfeasance only, then he would remove at his peril, in case 
the misconduct could not be proved. 

The United States make a law granting the right to occupy 
the square in the federal city around the Capitol to an indivi- 
dual; but direct, that in case he shall commit waste, the presi- 
dent shall deprive him of the possession. Can it be doubted, 
that if the tenant has committed no waste, and the president 
dispossess him, he will have a right to recover the value of his 
term, although the president may have acted honestly under a 
belief of the face? — The case would be different if the law had 
empowered the president to dispossess, if, in his opinion, the oc- 
cupant injured the freehold. — Thus, in my case, the law autho- 
rizes the president io remove settlers from public lands, and in 
the exercise of his duty, he emoves a man from the possession 
of his own land; can it excuse him to say, he thought the pro* 

* 2 Cranch, 115 Ibid. 176. 



173 

perty belonged to the public? — I think not; because that plea 
would always be ready to justify every outrage, as wilful mis- 
conduct is rarely to be proved, and error of judgment will ge- 
nerally be presumed. 

The principle, then, I think, is reducible to this: 
Error in judgment shall only excuse an executive officer, 
where he is expressly directed by law to act according to the 
result of his own opinion. 

And that, only in cases where there is no constitutional bar to 
his being invested with such discretionary power. 

But in this case I have shewn, that nothing is either ex- 
pressly or impliedly left to the judgment of the president, under 
the law of 1807. 

And that if the question of property were by that law referred 
to his decision, that law would be unconstitutional. 
Therefore, error in judgment is no excuse for the act. 
Nor will such consequences result from this responsibility, 
as the apprehensions of the late president have drawn. We shall 
find men of respectability, talents and integrity, to fill our exe- 
cutive offices, even although it should be determined that they 
cannot protect themselves against the consequences of illegal 
acts, by the plea of an error in judgment. The establishment of 
this doctrine will not, as is supposed, call paupers to the seats of 
office. But let the reverse be known, let every executive officer 
fully understand that he may oppress with impunity, provided 
he will but declare, that if he erred, it was an error of the judg- 
ment, and we shall then, indeed, not find " paupers" in office. 
The system provides an excellent remedy against that evil, — 
but we shall find them every where else, and the people, under 
such a government, would soon be reduced not only to mendi- 
city, but despair. But if this should be a good defence, can TVTr. 
Jefferson use it? — Will the circumstances of this case permit 
him to say, that he has acted with pure intentions, and accord- 
ing to his own sense of right? — I will not say, that his profes- 
sion of conscious rectitude is insincere, because none but the 
Supreme Being can judge the purity of the mind; but this I can 
say, that if he really think his own conduct to have been legal 
and meritorious, his sense of right and wrong is entirely con- 
founded, and his principles are even more dangerous than his 
practice. There are some circumstances, however, in his conduct. 



174 

which, with every charitable inclination, it will be found difficult 
to reconcile to that purity of intention which the late president 
professes. A laudable zeal to defend the title of the public to 
its property, which was invaded, would not have been satis- 
fied with the expulsion of one intruder, while thousands beside 
him were suffered to occupy the lands of the nation; the consti- 
tutional duty of " seeing that the laws be executed" would not 
have been complied with by enforcing them against a single 
offender.— Paternal solicitude for the city, and a desire t pre- 
serve thr free navigation of the river, had they been true mo- 
tives, would have guarded against every attempt to injure them, 
an^ if I shew that others were circumstanced exactlv as I was 
with respect to property of the same description— that the pre- 
sident knew it, that he suffered them to continue their posses- 
sion, and deprived me of mine,— I then reduce him to the di- 
lemma of confessing that he acted oppressively towards me, or 
unjustly towards the public, whose rights he was bound by the 
same duty to enforce without distinction of persons against all, 
and our belief in the sincerity of his professions must suffer 
some diminution, when we recollect that the unmolested pos- 
sessors of this property, pretended to be that of the public, 
were men of influence and wealth, while the one selected for 
the display of executive energy was poor, and supposed to be 
unpopular. The first ground, and, as I think I have shewn, the 
only ground originally taken by Mr. Jefferson, was that all allu- 
vions belonged by the laws of France to the crown, and that by 
the transfer of the province, those regal rights were vested in 
the United States. If he honestly believed this, and thought it 
his duty to seize property of this description, if by his construc- 
tion of the law it enabled him to do this at short hand, why, I 
ask, under this sense of duty, and with these means provided 
for the performance of it, why has he neglected the public in- 
terest so as to suffer thousands of acres of this species of land, 
so manifestly belonging to the nation, to remain in the hands of 
the wealthy planters who possessed and still possess it, while he 
chooses in a solitary instance, the property of the widow, the 
orphan, and the stranger in the land, to manifest his regard to 
official duty? — Can the " erect attitude of conscious innocence" 
be pi served while an answer is given to this question? Can any 
answer whatever be given to it?— He was ignorant, perhaps, of 



175 

other intrusions, mine was the only one officially denounced to 
him —-Not so — every line he read on the controversy, every 
traveller who spoke to him of the country, the very nature of its 
conformation, must have informed him that lands of this de- 
scription existed in every bend of the river, and as to the de- 
nunciation, that operated exclusively in my favour; because it 
was accompanied with documents which shewed that my title 
had received the sanction of a judicial decision, an advantage 
which was wanting to the other alluvion lands in the country;— 
a due respect, therefore, for the judiciary department would 
have dictated his choice of another intruder, if it were true that 
all the possessors of battures merit that appellation. 

Was thtre , then, any thing peculiar in the title to the Gra- 
vier tract, which made the alluvion annexed to it more clearly 
the property of the United States than those accruing to other 
lands? — No. Let the reader cast his eye on the plan; he will 
there set that the Jesuit's plantation is divided into five lots, four 
of which were respectively owned at the time of the seizure of 
mint , by Mr. Duplantier, Mr. Solet, Mr. Robin, and Mr. Livau- 
dais, or persons holding under them, and one by Mr. Gravier or 
his vendees.— Now, as all these portions of the original grant 
were sold at the same time, under the same circumstances, and by 
the same words and mode of conveyance, to the different vendees 
and the accession had been formed in the same manner to all of 
them, there can be nothing in the title that could justify a dis- 
crimination between the lands of Gravier, and those of the other 
proprietors. Yet his were taken, and the others were left. But 
the favoured proprietors were among the most influential and 
wealthy inhabitants of the country. The road, perhaps! — Unfor- 
tunately it ran in the same manner in front of Duplantier, 
Livaudais, and others, that it did in front of Gravier. 

The urban and rural distinction! — Gravier's land had become 
a suburb! so are Livaudais', Duplantier's, Solet's, and Robin's; 
— not all, I grant, at that period, but all for many years since; 
yet not one single indication has been given of a claim on the 
part of government. 

But, a care to preserve the navigation of the river! the dan- 
gerous works of Mr. Livingston! — Another glance at the plan 
shews, that it his works were dangerous, those which were 
suffered without interruption to be completed were much more 
so. The levee of 1805, opposite to the other suburbs of Du> 



176 

plantrer, &c. projects twice as far into the river as mine, and 
incloses a space of nearly eight times the area. So that if mine 
were dangerous, this was so in a quadruple ratio. Yet these " ag- 
gressors" were suffered peaceably to go on with their " encroach- 
ments on the bed of the river" and are permitted to enjoy the 
fruits of their labour. No cabinet council is called for them;.-* 
no warrants issued,-*-no troops ordered to be held in readiness, 
to enforce its execution. Every thing is quietness and calm, 
while the storm rages the moment I attempt to make the same 
use of my property they have done of their's: Why this dis- 
tinction? Can the man who made it, arrogate to himself the at- 
tribute of impartial justice? — Can he assume the " erect atti- 
tude" of conscious innocence? — No; — his true justification is 
inadvertently given in another part of his conclusion. The act 
was popular as it respected my lands, and would have been the 
reverse as respected the others. Mine lay convenient for public 
use, the others were somewhat more remote. I was supposed 
to have no influence — that of Mr. Livaudais, and the others, 
from their great wealth and deservedly high standing, was 
known to be very great. Hence, the addresses, the newspaper 
paragraphs, the benedictions (as Mr. Jefferson calls them) of a 
province. 

He has lived, however, one would suppose, long enough in 
political life, to know the just value of these addresses, on which 
he so much relies; — most unfortunately, in our government they 
are proofs of nothing; — sometimes produced by intrigue, some- 
times by corruption, generally by party feelings, rarely by good 
actions; — they are far from forming that kind of testimonial 
which a prudent man would refer to as a test of the correctness 
of his conduct. Mr. Jefferson's predecessor in the presidential 
chair, received, I believe, more addresses than any other man 
(not excepting Washington himself) in the same space of time, 
approving political measures which Mr. Jefferson stronglv op- 
posed; and for the reverse of which he himself was addressed 
from Georgia to Maine. Were all these addresses proofs of pub- 
lic sentiment? — clearly not.— Why, then, does he refer to them? 
He refers to them because they were uppermost in his mind 
through the whole course of the transaction; because they were 
the price of his disregard of the constitution, the motive for his 
contempt of the judiciary, and the reward of his violation of 
private right. 



177 

I now take my leave of Mr. Jefferson. In my answer, I have 
confined myself to his book. Notwithstanding th strong temp- 
tations which assailed me almost in every page, I have strictly 
kept within the boundaries of a just (and, I think, considering 
the wanton attack) a mild defence. My future conduct will de- 
pend much on that of my adversary. I shall continue to reply to 
every argument that may be addressed to the public on this 
subject. Knowing that my cause is good, I do not despair even 
with humble pretensions, to make its justice appear. For this 
purpose I have always courted investigation; I should have 
preferred it in a court of justice, but do not decliue it before the 
public. 

Though some may condemn me only on hearing the name of 
my opponent, there are many, very many in the nation, who 
have independence enough to judge for themselves, and the 
ability to decide with correctness,— to such I submit the merits 
of a controversy which has been rendered interesting as well 
from the constitutional as the legal questions it involves, and on 
which Mr. Jefferson has, by his management of it, staked his 
legal, his political, and almost his moral reputation — That he 
should not have understood the nature of my title and the dif- 
ferent foreign codes on which it depends, is no reproach— That 
he should have acted at all without this knowledge, must sur- 
prize—that he should have acted forcibly, must astonish us— 
But, that he should persevere in the same pretence of under- 
standing the laws of France better than gentlemen bred to it 
from their childhood, and who, engaged on the same side of the 
controversy with himself, have abandoned the ground he has 
taken — That he should obstinately justify an invasion of private 
property, in a manner that puts it in the power of a president 
with impunity to commit acts of oppression, at which a king 
would tremble — That he should do all this, and still talk of con- 
scious rectitude, must amaze all those who look only to the re- 
putation he has enjoyed, and who do not consider the incon- 
sistency of human nature, and the deplorable effects of an inor- 
dinate passion for popularity. 

EDWARD LIVINGSTON, 
New Orleans, 1st July, 1813. 

Z 



POSTSCRIPT. 



A decision has at length taken place in a court of justice on 
the legality of Mr. Jefferson's proceeding. 

A suit was brought against the marshal, in the district court 
of the United States for the Orleans district, according to the 
forms of the civil law,— me object of which was to obtain da- 
mages for the expulsion, and to be restored to possession. 

The defendant pleaded the warrant of the president as his 
justification. 

To this the plaintiff demurred, and after argument the Court 
on the 4th of August last, decided that the warrant was illegal, 
being unauthorised by the act under which it purports to have 
been issued; and directed that the plaintiff should be restored 
to his possession, which was accordingly done. A report of this 
case will in due time be given to the public. 

EDWARD LIVINGSTON. 

New Orleans , 1st Sept* 1813. 



APPENDIX. 



No. I. 

Proof that Mr. Gravier had begun to improve the batture before 

the cession of Louisiana to the United States. 

(Translation.) 

Deposition of John Lewis Laurent^ inhabitant of the city of 

New Orleans, made the 17th March, 1808, before me, the 

undersigned, justice of the peace: 

The said deponent being duly sworn according to law, doth 
depose and declare, That about the end of the year 1803 or the 
beginning of the year 1804, he was requested by Mr. John Gra- 
vier to measure off a space of about 400 feet, fronting the square 
between the streets Jul,ie and St. Joseph, and extending five or 
six hundred feet towards the river, and that immediately after- 
wards Mr. Gravier set his negroes to work so make a levee 
quite round the said space which he had thus measured, and 
that the said levee was finished in the course of the winter of 
1804, and that the said levee exists still so as to be traced in its 
whole extent. 

JEAN LEWIS LAURENT. 
Sworn and signed in my presence, 
the 18th March, 1808. 

B. VAN PR ADELLES, Justice of Peace. 



No. II. 
Proofs that the batture was considered under the Spanish govern- 
ment as the property of Gravier. 
La Roche, being duly swum, doth depose and say, That in 
the year seventeen hundred and ninety-five, and for some time 
previous thereto, Laurent Sigur, the father in-law of this depo- 
ftent, had a contract for supplying the royal navy of Spain with 
masts That in the spring of the said year, a very large raft of 



ISO 

masts having come down the river, and that part of the shore 
btlo. the city where they had been usually placed, being very 
much encumbered, the said Sigur desired the deponent to go to 
the governor (then the Baron de Carondelet) to get his direc- 
tions where he should deposit the said masts. 

That the deponent accordingly went to the Baron de Caron- 
delet, with Mr. Lovio, the minister of marine, who, after hearing 
the statement of the case, directed the deponent to go to Ber- 
trand Gravier, and request him in his (the governor's) name, to 
give permission to lay said masts on the batture in front of the 
fauxbourg — adding that if Gravier refused, he would endeavour 
to find some means of making him consent. 

That the deponent accordingly went to Gravier with the go- 
vernor's message, who readily consented, and the masts were 
accordingly placed on the batture, where they remained for a 
long time, at least eighteen months. 

And this deponent further saith, that some time after the pe- 
riod above spoken of, and, as he thinks, in the year seventeen 
hundred and ninety-eight, Bertrand Gravier being then dead, 
he was again sent on a similar message to governor Gayoso, 
then governor of the province, who directed the deponent to go 
to John Gravier, the present proprietor, and ask his permission 
to lay up the masts on his batture, which the deponent did. 
Gravier consented, and the masts were accordingly placed on 
the batture opposite to Mr. Eva's, the captain of the port, and 
frorc\ thence upwards. 

And the deponent further saith, that Bertrand Gravier had, 
for a number of years, a very large brick-kiln, and that he always 
took the earth for the same from the said batture, and from no 
other place. 

ROCHE. 
Sworn to and signed before me, 
March 21st, 1808. 

B. VAN PRADELLES, Justice of Peace. 

Laurent Sigur, being duly sworn, deposeth and saith, that he 
sent the above deponent La Roche to the governors Gayoso and 
Carondelet, at the several periods and for the purposes men- 
tioned in the preceding deposition, and that the answers then 
reported to him by the said La Roche, as coming from the 



181 

Baron tie Carondelet, governor Gayoso, Bertrand Gravier and 
John Gravier, perfectly accord with the statement in the above 
deposition. 

L. SIGUR. 
§worn to and signed before me, 
March 21st, 1808. 

B. VAN PRADELLES, Justice of Peace. 



No. III. 
Certificates to the character of the above witnesses, and of Mr* 
Parisien, mentioned above, p. 21. 
I certify that Mr. Laurent Sigur has been well known to me 
since my first arrival in this country. That he has always sus- 
tained the character of a very respectable worthy man, and is a 
planter residing in the vicinity of this city. And that he was 
captain and commandant of Iberville under the Spanish govern- 
ment, and was much considered under that government. 

WILLIAM C. C. CLAIBORNE. 
New Orleans, 10th June, 1813. 

City and Parish of Orleans, ss. 

I do hereby certify that I have known Mr. Nicholas Roche 
of the city of New Orleans for several years last past, and that 
he is a man of good moral character and conduct, that he has 
resided in this city for more than twelve months, and that he is 
upwards of twenty-one years of age. 

Given under my hand at the city of New Orleans this 
24th day of November in the year of our Lord 1809, 
and in the 34th year of American Independence.- 
(Signed) L. MOREAU LISLET. 

I do hereby certify the above to be a true copy from the ori- 
ginal certificate given in the above case. 

L. S. THO. S. KENNEDY, Clk. 

Nous, Pierre et Ant. Carraby, negociants en cette ville de la 
Nouvelle Orleans, certifions a qui de besoin peut etre; avoir 
eonnu le defunt Louis Henry Parisien, pour une des personnes 
honnetes avec qui I'on puisse traiter; et qu'avec nous, soit sous 



182 

notre raison soit individuellement, sa probite ne s'est jamais de- 
mentie, non plus qu'avec maintes autres pe rsonnes, qui, a notre 
connoissance ont eu affaires avec lui. Delivre sous notre signa- 
ture a telles fins que de raison. Nouvelle Orleans, le 11 Xbre 
1812. 

P. & ANT. CARRABY. 

Je soussigne, declare et certifie sous la foi du strment, qu'- 
ayant connu feu Louis Henry, sumomme Parisien, des l'annee 
1792; ayant meme ete avec lui en relations et concurrence 
d'affaires et d'entreprises publiques assez epineuses, j'ai tou- 
jours reconnu en lui un homme d'un commerce sur, d'une pro- 
bite et d'une delicatesse a toute epreuve: En foi de quoi je 
delivre le present pour valoir ce que de droit. Nouvelle Orleans, 

le 13 Xbre 1812. 

D. D. DES ESSARTS. 

(Translation.) 
We, Peter and Anthony Carraby, merchants of this city of 
New Orleans, certify to all whom it may concern, that we have 
known Louis Henry Parisien, deceased, to be one of the most 
honest men with whom a person could deal; and in his dealings 
as well with our commercial firm as with us individually, he 
never deviated from the line of probity, and was the same in 
his dealings with many other persons, who, to our knowledge, 
have transacted business with him. Given under our hands, 
to serve all lawful purposes. New Orleans, 11th Dec. 1812. 

P. & ANT. CARRABY. 

I, the underwritten, do declare and certify as if I were upon 
oath, that having been acquainted with the late Louis Henry, 
surnamed Parisien, since the year 1792, and having been con- 
cerned with and against him in business, and in public under- 
takings of an intricate nature, I have always known him to be 
a man on whom reliance could be placed, and whose delicacy 
and probity could not be shaken. In faith whereof, I have de- 
livered the present certificate, to avail as mav be just and right. 
New Orleans, 13th Dec. 1812. 

D. D. DES ESSARTS. 



183 

N.-. IV. 
Proofs that my improvements on the batturewere not dangerous , 
but, on the contrary, would have been highly useful to the city 
of Nexv Orleans. 

We, the subscribers, captains of vessels now lying in the port 
of New Orleans, do certify, that we have examined the canal 
constructed, and nearly completed by Edward Livingston, Esq. 
on the batture of the suburb St. Mary; and we are of opinion, 
that the said canal, when completed, will be of the greatest use 
to commerce, by affording a convenient birth for ships and other 
vessels; and that similar canals, constructed along the whole 
front of the said suburb, particularly when stores shall be erect- 
ed on the sides, will greatly facilitate the lading and unlading of 
vessels, without the expense of cartage. And we are further of 
opinion, from examining the current of the river at high water, 
that the said canals will not render the current more rapid, or 
the harbour more inconvenient or less secure; but, on the con- 
trary, will afford both convenience and safety so the shipping. 

Samuel Orr, ship Baltic, of Portsmouth, N. H. 

E. C. Gardner, Western Trader, of Philadelphia, 

Jas. Patterson, Mos.s Gill, of New-York. 

Levi Joy, Yorkshire, of New- York. 

Charles Clasby, Orion, of Philadelphia. 

Charles Coffin, ship Rover. 

Henry Say ward, ship Flora. 

A. P. Walsh. 

Thomas Pollock, commander pro tern. Revenue Cutter, 
Louisiana. 

W. M. Harris, Amiable Lucy, New Orleans, 

William Torrey. 

Z. Butler, Perseverance, of Philadelphia. 

Robert Harrison, Catherine, New Orleans. 

James D. Nicholas, Polly, Nezv York. 

Phil. C. Hogan, brig Traveller. New York. 



New Orleans, ■■ ■ ■ » 

Sir, 

I hope you will excuse my not answering your note on 
the subject of the works you had begun, in the front of the 
suburb St. Mary, sooner; however, I hope my answers to the 
queries contained therein, are still in time. 



1*4 

To the first I answer, that I have seen the canal, as well as 
the other works you had commenced, and the plan exhibited in 
the coffee-room. 

To the second, as to the effect the completion of the plan 
might have on the harbour, it is almost impossible for any one 
to say; it is time only can decide that question. But I have- no 
hesitation in saying, that I cannot conceive what injury the 
shipping can ever receive from the completion of the plan. 

To the third, whether the canal, in its present imperfect state, 
has not been found a safe and convenient harbour for boats, 
every honest man will answer in the affirmative. What water 
there may be in the canal I cannot say; but I think there must 
be at least ten feet; and I am very sure, that any craft lying 
therein, is less exposed than at the levee. I do believe, that the 
completion of the plan would be of great advantage to the trade 
of the western country, in securing the boats from the gales to 
which they have hitherto been exposed. There is not a year in 
which a number of them are not sunk; but if the works alluded 
to were completed, they would be out of danger the moment 
they arrived. 

I remain, with esteem, 

your humble servant, 

S. B. DAVIS. 

New Orleans, April 4, 1809. 
Sir, 

I have the honour to acknowledge the receipt of your 
letter of the 10th ult. and should have replied to it at an earlier 
date, had not my duties compelled me to be absent from the 
city from that time until the 25th; since which period I have 
waited in expectation of an opportunity of seeing your plans, 
and thereby having it in my power to express to you my 
opinion fully on the subject. As they have not been presented 
to me, and not knowing the person in whose possession they 
may be, or to whom I should apply for the necessary informa- 
tion, to enable me to answer satisfactorily all the interrogatories 
you have, in so flattering a manner, proposed to me, I felt it my 
duty to inform you of the same: in order (if time should admit) 
that the person charged with them may present them, and give 
me suitable explanations; at present, sir, I can only answer your 
third, and part of the fourth questions. 



185 

" Third: Whether, in its present imperfect state, the canal 
already made, is not a safe retreat for the river craft; and, 
whether you do not think it will continue so during months, 
when high winds mostly prevail in these latitudes?" 

u Fourth: Whether this canal, at the present season, and, 
when completed, at all seasons of the year, would not be a very 
safe birth for the gun boats of the United States; and whether 
it would not be a very great accommodation to the service, if 
two or three such canals were constructed, with adjoining 
stores for the rigging, &c. of the navy?" 

Answer: As a proof that the canal commenced by you, is 
considered not only a safe, but very convenient retreat for river 
craft, I shall only state, that at all seasons of the year, when the 
height of the water will admit, it is filled with river craft, and 
chiefly those which prefer a secure situation, to enable them to 
make their repairs, and to preserve cargoes of great value; and 
a similar convenience for the gun vessels, would certainly be a 
very desirable object. 

The effect the completion of your design would have on the 
currents, as I have not seen the plan, I cannot presume to state ; 
it appears to me, however, that it must already have tended, in 
a small degree, to increase the eddy on the New Orleans side 
of the river, and, of course, made the current more rapid on the 
opposite. Whether this is an advantage or disadvantage to the 
shipping lying at the levee, I am equally at a loss to determine j 
and am doubtful whether it does, in any way, affect that part 
opposite the centre of the city. If it is a disadvantage, it is one I 
have never yet heard complained of by mariners. An advantage, 
I should suppose, would result to the city, by the increase of 
land occasioned by the deposit in this eddy, and the consequent 
safety of the levee; but on the opposite side of the river, the 
effect must be the reverse; the river will certainly make en- 
croachments there, as the land on the city side increases. This 
local effect, however, can be considered of little moment in a 
river that is constantly shifting its bed; and if this was not pro- 
duced, by the projection of the levees, for the formation of your 
canals, it appears to me it would be produced, in a short time, 
by that constant deposit which has already formed, and is daily 
increasing that part of the batture which appears the cause of 
so much contention. For it is a well known fact, that when the 

2A 



186 

land on one side of this river increases, the opposite side, a little 
below, is swept away by the current; and this earth is deposited 
in the next eddy, to form a new point. Thus the river will for- 
ever change its bed; and the trifling increase or loss of a few 
acres of earth on either side, cannot be considered of sufficient 
magnitude to balance the smallest improvement of utility to 
navigation or commerce. 

As respects the convenience or inconvenience that the com- 
pletion of your plan would offer to vessels ascending or descend- 
ing a river of such length, and so full of obstructions and 
difficulties as this, I cannot consider of any importance; the 
comparative extent of your plan, taking it on its largest scale, 
and all its conveniences and inconveniences, must, in this re- 
spect, be really so diminutive, as to render them objects of no 
note. If it did present obstructions or conveniences to ascend- 
ing or descending, the extent of them could not, I presume, be 
more than a mile, the y~ooo part of the extent of the Mississippi. 
There is, however, an evil existing, the removal of which would 
certainly be hastened. The batture now in dispute, in high 
water forms a shoal, on which vessels frequently ground. If 
canals are cut there, and levees hove up, the evil will no longer 
exist. 1 can say nothing of the enormous sums which I should 
supp.se had already been expended there; and not knowing the 
extent of your plan, I cannot form an idea of what it would cost 
to complete it. It, however, appears to me, that the expense that 
would be necessary in its present state, to clear out the annual 
deposits of the river, would be very considerable. 

Excuse me, sir, for not answering your questions in the order 
they are placed by you; and I regret that the imperfect idea I 
ha. of your plans, should have prevented me from giving de- 
tailed answers to the whole. 

I have the honour to be, 

with great respect, 

your obedient servant, 

D. PORTER. 

Edward Livingston, Esq. 



387 

New Orleans y April 6, 1809. 
Sir, 

Since I had the honour to write you on the 4 -h inst. I 
have seen, at the exchange, your plan of improving the batture 
in the upper Fauxbourg; have this day examined said batture 
carefully, and find, that it will always cause a strong eddy below, 
improved or unimproved. This shoal has but the depth of a few 
feet of water on it, in the present state (which is nearly the high- 
est) of the river; and as the water which covers it is nearly still, the 
effects on the currents and eddies must be nearly, and perhaps 
quite, as great as if levees were thrown up on it; and, indeed, I 
cannot discover, that any evil could result to the port, should it 
be improved agreeable to your design. In a few years, the great 
deposit of the river will certainly produce the same effects as 
your contemplated improvements. And the only objection I 
can conceive, is the vastness of your plan. The expense to effect 
it would certainly be enormous; but, if completed, I am of 
opinion, it would be an object extremely desirable to all per- 
sons having property afloat in such frail vessels as the craft that 
descend this river; and if the design should be carried complete- 
ly into execution, the upper Fauxbourg would be handsomely 
ornamented, and the value of property much increased in the 
part now least improved. 

I have the honour to be, 

with great respect, 

your obedient servant, 

D. PORTER. 



ERRATA. 
P. 57, line 31, for Demoulin, read Dumoulin. 
P. 64, line 34, for quase, read quasi. 

P. 135, line 9, for The government, read 1. The government 
P. 138, line 13, for But I do not, read 2 But I do not. 



